Pre-Effective Amendment to Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3/A Pre-Effective Amendment to Registration Statement 100 494K
for Securities Offered Pursuant to a
Transaction
2: EX-1.D Underwriting Agreement 64 192K
3: EX-1.E Underwriting Agreement 98 280K
4: EX-1.F Underwriting Agreement 37 117K
23: EX-4.AA Instrument Defining the Rights of Security Holders 68 208K
24: EX-4.BB Instrument Defining the Rights of Security Holders 19 70K
32: EX-4.BBB Instrument Defining the Rights of Security Holders 5 26K
25: EX-4.CC Instrument Defining the Rights of Security Holders 44 145K
26: EX-4.DD Instrument Defining the Rights of Security Holders 96 333K
5: EX-4.F Instrument Defining the Rights of Security Holders 77 287K
6: EX-4.G Instrument Defining the Rights of Security Holders 80 310K
27: EX-4.JJ Instrument Defining the Rights of Security Holders 10 35K
7: EX-4.K Instrument Defining the Rights of Security Holders 27 108K
8: EX-4.L Instrument Defining the Rights of Security Holders 19 70K
9: EX-4.M Instrument Defining the Rights of Security Holders 59 206K
10: EX-4.N Instrument Defining the Rights of Security Holders 28 106K
11: EX-4.O Instrument Defining the Rights of Security Holders 20 69K
12: EX-4.P Instrument Defining the Rights of Security Holders 61 209K
13: EX-4.Q Instrument Defining the Rights of Security Holders 19 70K
14: EX-4.R Instrument Defining the Rights of Security Holders 29 109K
15: EX-4.S Instrument Defining the Rights of Security Holders 13 43K
16: EX-4.T Instrument Defining the Rights of Security Holders 31 116K
17: EX-4.U Instrument Defining the Rights of Security Holders 26 106K
18: EX-4.V Instrument Defining the Rights of Security Holders 12 41K
28: EX-4.VV Instrument Defining the Rights of Security Holders 74 279K
19: EX-4.W Instrument Defining the Rights of Security Holders 20 79K
29: EX-4.WW Instrument Defining the Rights of Security Holders 84 324K
20: EX-4.X Instrument Defining the Rights of Security Holders 18 71K
21: EX-4.Y Instrument Defining the Rights of Security Holders 16 63K
30: EX-4.YY Instrument Defining the Rights of Security Holders 17 62K
22: EX-4.Z Instrument Defining the Rights of Security Holders 18 66K
31: EX-4.ZZ Instrument Defining the Rights of Security Holders 23 82K
33: EX-5.A Opinion re: Legality 6 37K
34: EX-5.B Opinion re: Legality 3 24K
35: EX-5.C Opinion re: Legality 3 24K
36: EX-5.D Opinion re: Legality 3 23K
37: EX-5.E Opinion re: Legality 3 24K
38: EX-5.F Opinion re: Legality 3 23K
39: EX-15 Letter re: Unaudited Interim Financial Information 1 19K
40: EX-23.A Consent of Experts or Counsel 1 15K
Exhibit 1-e
MORGAN STANLEY
Global Medium-Term Notes, Series G and Series H
Global Units, Series G and Series H
[FORM OF EURO DISTRIBUTION AGREEMENT]
[ ], 2004
Morgan Stanley & Co. International Limited
c/o Morgan Stanley & Co. International
Limited
25 Cabot Square
Canary Wharf London E14 4QA
United Kingdom
Dear Sirs:
Morgan Stanley, a Delaware corporation (the "Company"), confirms its
agreement with you with respect to the issue and sale from time to time by the
Company primarily outside the United States of up to $[ ] (or the equivalent
thereof in one or more currencies other than U.S. dollars) aggregate initial
public offering price of its Global Medium-Term Notes, Series G and Series H,
each due more than nine months from the date of issue (the "Notes") and its
Global Units, Series G and Series H (the "Units" and together with the Notes,
the "Program Securities"), in each case subject to reduction as a result of the
sale of the Company's (i) Global Medium-Term Notes, Series F, to be sold
primarily inside the United States, (ii) Global Units, Series F, to be sold
primarily inside the United States, and (iii) the sale of certain of the
Company's other debt securities, warrants, common stock, preferred stock,
purchase contracts and units and of capital securities of certain Morgan Stanley
Capital Trusts. The Series G Notes are intended to be admitted to listing on the
Official List of the Financial Services Authority (the "UK Listing Authority")
in its capacity as competent authority for the purposes of Part VI of the
Financial Services and Markets Act 2000 (the "FSMA"), and to trading on the
London Stock Exchange plc (the "London Stock Exchange") or admitted to listing,
trading and/or quotation by any other listing authority, stock exchange and/or
quotation system, if so required by Section 3(j) hereof. Application may, in
certain circumstances described in the Prospectus Supplement (as defined below),
be made to admit the Series G Units to the Official List of the UK Listing
Authority and to trading on the London Stock Exchange. The Series H Notes and
the Series H Units will not be listed on any stock exchange.
The Notes may be issued as senior indebtedness (the "Senior Notes") or
as subordinated indebtedness (the "Subordinated Notes") of the Company. The
Senior Notes will be issued, either alone or as part of a Unit, pursuant to the
provisions of an amended and restated senior indenture dated as of November 1,
2004, between the Company and JPMorgan Chase Bank, as trustee (the "Senior Debt
Trustee") (as may be supplemented or amended from time to time, the "Senior Debt
Indenture"). The Subordinated Notes will be issued pursuant to the provisions of
a subordinated indenture dated as of October 1, 2004, between the Company and
J.P. Morgan Trust Company, National Association, as trustee (the "Subordinated
Debt Trustee") (as may be supplemented or amended from time to time, the
"Subordinated Debt Indenture"). The Senior Debt Indenture and the Subordinated
Debt Indenture are sometimes hereinafter referred to individually as an
"Indenture" and collectively as the "Indentures," and the Senior Debt Trustee
and the Subordinated Debt Trustee are sometimes hereinafter referred to
individually as a "Trustee" and collectively as the "Trustees." Purchase
contracts ("Purchase Contracts") that require holders to satisfy their
obligations thereunder when such Purchase Contracts are issued are referred to
as "Pre-paid Purchase Contracts." Pre-paid Purchase Contracts that settle in
cash ("Cash-settled Pre-paid Purchase Contracts") generally will be issued under
an Indenture. Pre-paid Purchase Contracts that do not settle in cash
("Physically-settled Pre-paid Purchase Contracts") generally will be issued
under the Unit Agreement or the Unit Agreement Without Holders' Obligations
(each as defined below).
The Units will be issued either pursuant to the Unit Agreement dated as
of November 1, 2004, among the Company, JPMorgan Chase Bank, as Unit Agent, as
Collateral Agent, as Trustee and Paying Agent under the Indenture referred to
therein, and as Warrant Agent under the Warrant Agreement referred to therein,
and the holders from time to time of the Units described therein (as may be
amended from time to time, the "Unit Agreement") or, if the Units do not include
Purchase Contracts (or include only Pre-paid Purchase Contracts), pursuant to a
Unit Agreement among the Company and JPMorgan Chase Bank, as Unit Agent, as
Trustee and Paying Agent under the Indenture referred to therein, and as Warrant
Agent under the Warrant Agreement referred to therein, in the form of such
agreement filed as an exhibit to the Registration Statement referred to below
(each such agreement, a "Unit Agreement Without Holders' Obligations").(1) Units
may include one or more (i) Senior Notes, (ii) warrants ("Warrants") entitling
the holders thereof to purchase or sell (a) securities issued by the Company or
by an entity not affiliated with the Company (or securities issued by an entity
affiliated with the Company in the case of Series H Units), a basket of
-------------------------------
(1) The Unit Agreement Without Holders' Obligations shall include
additional provisions to allow for the issuance of Pre-paid Purchase Contracts
that are not issued under the Indentures.
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such securities, an index or indices of such securities or any combination of
the above, (b) currencies or (c) commodities, (iii) Purchase Contracts,
including Pre-paid Purchase Contracts, requiring the holders thereof to purchase
or sell (a) securities issued by the Company or by an entity not affiliated with
the Company (or securities issued by an entity affiliated with the Company in
the case of Series H Units), a basket of such securities, an index or indices of
such securities or any combination of the above, (b) currencies or (c)
commodities or (iv) any combination thereof. The applicable prospectus
supplement will specify whether Notes, Warrants and Purchase Contracts comprised
by a Unit may or may not be separated from any series of Units. Warrants issued
as part of a Unit will be issued pursuant to the Warrant Agreement dated as of
November 1, 2004 (as may be amended from time to time, the "Warrant Agreement")
between the Company and JPMorgan Chase Bank, as Warrant Agent. Purchase
Contracts, other than Pre-paid Purchase Contracts ("Non-Pre-paid Purchase
Contracts"), entered into by the Company and the holders thereof will be
governed by the Unit Agreement.
The Notes, whether issued alone or as part of a Unit, will have the
maturities, interest rates, redemption provisions, if any, and other terms as
set forth in supplements to the Basic Prospectus referred to below. The Warrants
will have the exercise prices, exercise dates, expiration dates and other terms
as set forth in supplements to the Basic Prospectus. The Purchase Contracts will
have the closing dates, purchase or sale prices and other terms as set forth in
supplements to the Basic Prospectus. The Company has initially appointed (i)
JPMorgan Chase Bank, London Branch, at its principal office in London, as
principal paying agent for the Senior Notes (in such capacity, the "Senior
Paying Agent") and (ii) the Subordinated Debt Trustee (acting through JPMorgan
Chase Bank, London Branch, at is principal office in London, as its sub-agent)
as principal paying agent for the Subordinated Notes (in such capacity, the
"Subordinated Principal Paying Agent"). References herein to the "Principal
Paying Agent" are to the Senior Principal Paying Agent (in the case of duties
relating to the Senior Notes) or to the Subordinated Principal Paying Agent (in
the case of duties relating to the Subordinated Notes).
The Notes will be issued in bearer form or in definitive registered
form without coupons (the "Registered Notes"), the Units will be issued in
bearer form or in definitive registered form (the "Registered Units") and the
securities included in a Unit will be in the form of such Unit. The Program
Securities issued in bearer form will be represented initially by, in the case
of the Notes, a temporary global Note and, in the case of the Units, a temporary
global Unit, each of which will be delivered to a common depositary located
outside the United States for Euroclear Bank S.A./N.V., as operator of the
Euroclear System (the "Euroclear Operator"), Clearstream Banking, societe
anonyme ("Clearstream"), or any other relevant clearing system. Beneficial
interests in a temporary global Note or a temporary global Unit will be
exchangeable for beneficial interests in,
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in the case of a temporary global Note, a permanent global Note and, in the case
of a temporary global Unit, a permanent global Unit. Beneficial interests in a
permanent global Note will be exchangeable in whole, but not in part, for
definitive Notes in bearer form, with interest coupons attached, upon receipt of
the Principal Paying Agent of an initial request to so exchange by any holder of
a beneficial interest in such permanent global Note (such temporary global Note,
permanent global Note and definitive Notes in bearer form are collectively
referred to as the "Bearer Notes"), and Bearer Notes, if the applicable Pricing
Supplement so specifies, will be exchangeable in whole or in part for Registered
Notes. Beneficial interests in a permanent global Unit (including an interest in
the securities included in such Unit) will be exchangeable in whole, but not in
part, for definitive Units in bearer form upon receipt of the Unit Agent of an
initial request to so exchange by any holder of a beneficial interest in such
permanent global Unit (such temporary global Unit, permanent global Unit and
definitive Units in bearer form are collectively referred to as the "Bearer
Units") and Bearer Units, if the applicable Pricing Supplement so specifies,
will be exchangeable in whole or in part for Registered Units. As used in this
Agreement, the term "Note" includes any temporary global Note or permanent
global Note issued pursuant to the Indentures and the term "Unit" includes any
temporary global Unit or permanent global Unit issued pursuant to the Unit
Agreement.
The Company hereby appoints you as its exclusive agents for the purpose
of soliciting and receiving offers to purchase Program Securities from the
Company by others and, on the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, you agree
to use reasonable efforts to solicit and receive offers to purchase Program
Securities upon terms acceptable to the Company at such times and in such
amounts as the Company shall from time to time specify. In addition, you may
also purchase Program Securities as principal pursuant to the terms of a terms
agreement relating to such sale (in the case of Notes, a "Notes Terms Agreement"
and, in the case of Units, a "Units Terms Agreement") in accordance with the
provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Program Securities. Such registration statement, including the exhibits thereto,
as amended at the Commencement Date (as hereinafter defined), is hereinafter
referred to as the "Registration Statement." The Company proposes to file with
the Commission from time to time, pursuant to Rule 424 under the Securities Act
of 1933, as amended (the "Securities Act"), supplements to the prospectus
relating to the Program Securities included in the Registration Statement that
will describe certain terms of the Program Securities. The prospectus relating
to the Program Securities in the form in which it appears in the Registration
Statement is hereinafter referred to as the "Basic Prospectus." The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
or supplements
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(each, a "Prospectus Supplement") specifically relating to the Program
Securities, as filed with, or transmitted for filing to, the Commission pursuant
to Rule 424 under the Securities Act. As used herein, the terms "Basic
Prospectus" and "Prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated by
reference in the Prospectus that are filed subsequent to the date of the Basic
Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). If the Company has filed
an abbreviated registration statement to register additional Program Securities
pursuant to Rule 462(b) under the Securities Act (a "Rule 462 Registration
Statement"), then any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462 Registration Statement.
1. Representations and Warranties. The Company represents and warrants
to and agrees with you as of the Commencement Date, as of each date on which you
solicit offers to purchase Program Securities, as of each date on which the
Company accepts an offer to purchase Program Securities (including any purchase
by you as principal pursuant to a Notes Terms Agreement or a Units Terms
Agreement), as of each date the Company issues and delivers Program Securities
and as of each date the Registration Statement or the Basic Prospectus is
amended or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as amended
or supplemented to each such date):
(a) The Registration Statement has become effective, no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such
part became effective, did not contain and each such part, as amended
or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a
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material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that (1) the representations and
warranties set forth in this Section 1(b) do not apply (A) to
statements or omissions in the Registration Statement or the Prospectus
based upon information relating to you furnished to the Company in
writing by you expressly for use therein or (B) to those parts of the
Registration Statement that constitute the Statements of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the Trustees and (2) the representations and
warranties set forth in clauses (iii) and (iv) above, when made as of
the Commencement Date or as of any date on which you solicit offers to
purchase Program Securities or on which the Company accepts an offer to
purchase Program Securities, shall be deemed not to cover information
concerning an offering of particular Program Securities to the extent
such information will be set forth in a supplement to the Basic
Prospectus.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Written Notes
Terms Agreement or Written Units Terms Agreement (each as hereinafter
defined) has been duly authorized, executed and delivered by the
Company.
(f) Each Indenture has been duly qualified under the Trust
Indenture Act and each of the Senior Indenture, the Subordinated
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Indenture, the Unit Agreement and the Warrant Agreement has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its
terms except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law.
(g) The form of Unit Agreement Without Holders' Obligations
has been duly authorized by the Company and, when a Unit Agreement
Without Holders' Obligations has been duly executed and delivered by
the Company, the Unit Agreement Without Holders' Obligations will be a
valid and binding agreement of the Company, enforceable in accordance
with its terms except as the enforceability thereof (i) may be limited
by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law.
(h) The forms of Notes (including the form of Cash-settled
Pre-paid Purchase Contracts), whether issued alone or as part of a
Unit, have been duly authorized and established in conformity with the
provisions of the relevant Indenture and, when the Notes (and the
Cash-settled Pre-paid Purchase Contracts) have been executed and
authenticated in accordance with the provisions of the relevant
Indenture and delivered to and duly paid for by the purchasers thereof,
the Notes (and the Cash-settled Pre-paid Purchase Contracts) will be
entitled to the benefits of such Indenture and will be valid and
binding obligations of the Company, enforceable in accordance with
their respective terms except as the enforceability thereof (i) may be
limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally
and (ii) is subject to general principles of equity, regardless of
whether such enforceability is considered at a proceeding in equity or
at law.
(i) The forms of Units under the Unit Agreement, including the
forms of Warrants, Physically-settled Pre-paid Purchase Contracts and
Non-Pre-paid Purchase Contracts, have been duly authorized and
established in conformity with the provisions of (i) in the case of
such Units, Physically-settled Pre-paid Purchase Contracts and
Non-Pre-paid Purchase Contracts, the Unit Agreement and (ii) in the
case of Warrants, the Warrant Agreement. When such Units have been
delivered to and duly paid for by the purchasers thereof and (A) any
Physically-settled Prepaid Purchase Contracts and Non-Pre-paid Purchase
Contracts included in
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such Units have been executed by the Company and countersigned by the
Unit Agent and (B) any Warrants included in such Units have been
executed by the Company and countersigned by the Warrant Agent, such
Units (including any such Physically-settled Pre-paid Purchase
Contracts, Non-Pre-paid Purchase Contracts or Warrants contained
therein) will be entitled to the benefits of the Unit Agreement and, in
the case of the Warrants, the Warrant Agreement and will be valid and
binding obligations of the Company, enforceable in accordance with
their respective terms except as the enforceability thereof (i) may be
limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally
and (ii) is subject to general principles of equity, regardless of
whether such enforceability is considered at a proceeding in equity or
at law.
(j) When a Unit Agreement Without Holders' Obligations has
been executed and delivered by the Company, the Units to be issued
thereunder will have been duly authorized and when such Units have been
established in conformity with the provisions of the Unit Agreement
Without Holders' Obligations and delivered to and duly paid for by the
purchasers thereof, and any Warrants included in such Units have been
executed by the Company and countersigned by the Warrant Agent, such
Units (including any such Warrants contained therein) will be entitled
to the benefits of the Unit Agreement Without Holders' Obligations and
will be valid and binding obligations of the Company, enforceable in
accordance with their respective terms except as the enforceability
thereof (i) may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting creditors'
rights generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a proceeding
in equity or at law.
(k) The execution and delivery by the Company of this
Agreement, the Notes and Pre-paid Purchase Contracts (whether issued
alone or as part of a Unit), the Units (including any Purchase
Contracts and Warrants included therein), the Indentures, the Unit
Agreement, any Unit Agreement Without Holders' Obligations, the Warrant
Agreement and any applicable Written Notes Terms Agreement or Written
Units Terms Agreement and the performance by the Company of its
obligations under this Agreement, the Notes, the Pre-paid Purchase
Contracts, the Units (including any Purchase Contracts or Warrants
included therein), the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations, the Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its
8
consolidated subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Company or any of its consolidated subsidiaries, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Notes, the
Pre-paid Purchase Contracts, the Units (including any Purchase
Contracts or Warrants included therein), the Indentures, the Unit
Agreement, any Unit Agreement Without Holders' Obligations, the Warrant
Agreement and any applicable Notes Terms Agreement or Units Terms
Agreement, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Program Securities; provided, however, that no representation is made
or warranty given as to whether the purchase of the Program Securities
constitutes a "prohibited transaction" under Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, or Section
4975 of the Internal Revenue Code of 1986, as amended.
(l) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(m) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its consolidated subsidiaries
is a party or to which any of the properties of the Company or any of
its consolidated subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described or any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to
the Registration Statement that are not described, filed or
incorporated as required.
(n) Each of the Company and its consolidated subsidiaries has
all necessary consents, authorizations, approvals, orders, certificates
and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to
own, lease, license and use its properties and assets and to conduct
its business in the manner described in the Prospectus, except to the
extent that the failure to obtain or file would not have a material
adverse effect on the Company and its consolidated subsidiaries, taken
as a whole.
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(o) Morgan Stanley DW Inc. is registered as a broker-dealer
and investment adviser with the Commission, is registered with the
Commodity Futures Trading Commission as a futures commission merchant
and is a member of the New York Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc.
(p) Morgan Stanley & Co. Incorporated is registered as a
broker-dealer and investment adviser with the Commission, is registered
with the Commodity Futures Trading Commission as a futures commission
merchant and is a member of the New York Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc.
(q) The Company is not, and after giving effect to the
offering and sale of the Program Securities and the application of the
proceeds thereof as described in the Prospectus, will not be required
to register as, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
Notwithstanding the foregoing, it is understood and agreed that the
representations and warranties set forth in Section 1(b)(iii) and 1(b)(iv), 1(h)
(except as to due authorization of the Notes and Cash-settled Pre-paid Purchase
Contracts), 1(i) (except as to due authorization of the Units, Warrants,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase
Contracts), 1(j) (except as to due authorization of the Units and Warrants) and
1(k), when made as of the Commencement Date, or as of any date on which you
solicit offers to purchase Program Securities, with respect to any Program
Securities the payments of principal or interest on which, or any other payments
with respect to which, will be determined by reference to one or more currency
exchange rates, commodity prices, securities of entities affiliated or
unaffiliated with the Company, baskets of such securities, equity indices or
other factors, shall be deemed not to address the application of the Commodity
Exchange Act, as amended, or the rules, regulations or interpretations of the
Commodity Futures Trading Commission.
2. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. In connection with your actions as agents
hereunder, you agree to use reasonable efforts to solicit offers to purchase
Program Securities upon the terms and conditions set forth in the Prospectus as
then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct you
to suspend at any time, for any period of time or permanently, the solicitation
of offers to purchase Program Securities. Upon receipt of at least one business
day's prior notice from the Company, you will forthwith suspend solicitations of
offers
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to purchase Program Securities from the Company until such time as the Company
has advised you that such solicitation may be resumed. While such solicitation
is suspended, the Company shall not be required to deliver any certificates,
opinions or letters in accordance with Sections 5(a), 5(b) and 5(c); provided,
however, that if the Registration Statement or Prospectus is amended or
supplemented during the period of suspension (other than by an amendment or
supplement providing solely for (i) in the case of Notes issued alone or as part
of a Unit, a change in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes, (ii) in the case of Units, a
change in the exercise price, exercise date or period or expiration of an
underlying Warrant or a change in the settlement date or purchase or sale price
of an underlying Purchase Contract or (iii) for a change you deem to be
immaterial), you shall not be required to resume soliciting offers to purchase
Program Securities until the Company has delivered such certificates, opinions
and letters as you may request.
The Company agrees to pay to you, as consideration for the sale of each
Program Security resulting from a solicitation made or an offer to purchase
received by you, a commission in the form of a discount from the purchase price
of such Program Security equal to between .125% and .750% (depending upon such
Note's maturity or, in the case of Units, any underlying Note's maturity or the
terms of the Units and of the securities comprised by such Units) of the
principal amount of such Note or, in the case of Units, the face amount of such
Unit (provided that the commission for Notes having, or Units including Notes or
other securities having, a maturity of 30 years or greater will be negotiated)
or such other discount as may be specified in the Prospectus Supplement relating
to such Note or Unit.
You shall communicate to the Company, orally or in writing, each offer
to purchase Program Securities received by you as agent that in your judgment
should be considered by the Company. The Company shall have the sole right to
accept offers to purchase Program Securities and may reject any offer in whole
or in part. You shall have the right to reject any offer to purchase Program
Securities that you consider to be unacceptable, and any such rejection shall
not be deemed a breach of your agreements contained herein. The procedural
details relating to the issue and delivery of Program Securities sold by you as
agent and the payment therefor shall be as set forth in the Administrative
Procedures (as hereinafter defined).
(b) Purchases as Principals. Each sale of Program Securities to you as
principals shall be made in accordance with the terms of this Agreement. In
connection with each such sale, the Company will enter into a Notes Terms
Agreement or Units Terms Agreement that will provide for the sale of such
Program Securities to and the purchase thereof by you. Each Notes Terms
Agreement or Units Terms Agreement will take the form of either (i) a written
agreement between you and the Company, which may be substantially in the form
11
of Exhibit A or Exhibit A-1 (as applicable) hereto (in the case of Notes, a
"Written Notes Terms Agreement," and in the case of Units, a "Written Units
Terms Agreement"), or (ii) an oral agreement between you and the Company
confirmed in writing by you to the Company.
Your commitment to purchase Program Securities as principal pursuant to
a Notes Terms Agreement or Units Terms Agreement shall be deemed to have been
made on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Each (i) Notes Terms Agreement shall specify the principal amount of Notes to be
purchased by you pursuant thereto, the maturity date of such Notes, the price to
be paid to the Company for such Notes, the interest rate and interest rate
formula, if any, applicable to such Notes and any other terms of such Notes and
(ii) Units Terms Agreement shall specify (a) the information set forth in (i)
above with respect to any Notes issued as part of a Unit, (b) with respect to
any Warrants issued as part of a Unit, the exercise price, the exercise date or
period, the expiration date and any other terms of such Warrants and (c) with
respect to any Purchase Contracts issued as part of a Unit, the settlement date,
the purchase or sale price or any other terms of such Purchase Contracts. Each
such Notes Terms Agreement or Units Terms Agreement may also specify any
requirements for officers' certificates, opinions of counsel and letters from
the independent auditors of the Company pursuant to Section 4 hereof. A Notes
Terms Agreement and a Unit Terms Agreement may also specify certain provisions
relating to the reoffering of such Notes or Units, as the case may be, by you.
Each Notes Terms Agreement and each Units Terms Agreement shall specify
the time and place of delivery of and payment for such Notes or Units, as the
case may be. Unless otherwise specified in a Notes Terms Agreement or a Units
Terms Agreement, the procedural details relating to the issue and delivery of
Notes or Units, as the case may be, purchased by you as principal and the
payment therefor shall be as set forth in the Administrative Procedures. Each
date of delivery of and payment for Program Securities to be purchased by you as
principal pursuant to a Notes Terms Agreement or a Units Terms Agreement, as the
case may be, is referred to herein as a "Settlement Date."
Unless otherwise specified in a Notes Terms Agreement or a Units Terms
Agreement, if you are purchasing Program Securities as principal you may resell
such Program Securities to other dealers. Any such sales may be at a discount,
which shall not exceed the amount set forth in the Prospectus Supplement
relating to such Notes or Units.
(c) Administrative Procedures. You and the Company agree to perform the
respective duties and obligations specifically provided to be performed in the
Global Medium-Term Notes, Series G and Series H and Global Units, Series G and
Series H, Administrative Procedures (attached hereto as
12
Exhibit B) (the "Administrative Procedures"), as amended from time to time. The
Administrative Procedures may be amended only by written agreement of the
Company and you.
(d) Delivery. The documents required to be delivered by Section 4 of
this Agreement as a condition precedent to your obligation to begin soliciting
offers to purchase Program Securities as agents of the Company shall be
delivered at the office of Davis Polk & Wardwell, your counsel, not later than
4:00 p.m., New York City time, on the date hereof, or at such other time and/or
place as you and the Company may agree upon in writing, but in no event later
than the day prior to the earlier of (i) the date on which you begin soliciting
offers to purchase Program Securities and (ii) the first date on which the
Company accepts any offer by you to purchase Program Securities as principal.
The date of delivery of such documents is referred to herein as the
"Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program
Securities pursuant to this Agreement or pursuant to any Notes Terms
Agreement or Units Terms Agreement, the Company will not file any
Prospectus Supplement relating to the Program Securities or any
amendment to the Registration Statement relating to the Program
Securities unless the Company has previously furnished to you a copy
thereof for your review and will not file any such proposed supplement
or amendment to which you reasonably object; provided, however, that
the foregoing requirement shall not apply to any of the Company's
periodic filings with the Commission required to be filed pursuant to
Section 13(a), 13(c), 13(f), 14 or 15(d) of the Exchange Act, copies of
which filings the Company will cause to be delivered to you promptly
after being transmitted for filing with the Commission. Subject to the
foregoing sentence, the Company will promptly cause each Prospectus
Supplement to be filed with or transmitted for filing to the Commission
in accordance with Rule 424(b) under the Securities Act. The Company
will promptly advise you (i) of the filing of any amendment or
supplement to the Basic Prospectus, (ii) of the filing and
effectiveness of any amendment to the Registration Statement, (iii) of
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Basic Prospectus or for
any additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that
purpose, (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Program
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vi) of the issuance
by any non-United States regulatory authority of any request for
information
13
relating to the Program Securities or suspension of the listing,
trading and/or quotation of any Program Securities then admitted to
listing, trading and/or quotation by any listing authority, stock
exchange and/or quotation system. The Company will use its best efforts
to prevent the issuance of any such stop order or notice of suspension
of qualification or listing and, if issued, to obtain as soon as
possible the withdrawal thereof. If the Basic Prospectus is amended or
supplemented as a result of the filing under the Exchange Act of any
document incorporated by reference in the Prospectus, you shall not be
obligated to solicit offers to purchase Program Securities so long as
you are not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Program
Securities is required to be delivered under the Securities Act or made
available to purchasers of the Program Securities, any event occurs or
condition exists as a result of which the Prospectus, as then amended
or supplemented, would include an untrue statement of a material fact,
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances when the Prospectus, as then
amended or supplemented, is delivered to a purchaser, not misleading,
or if, in your opinion or in the opinion of the Company, it is
necessary at any time to amend or supplement the Prospectus, as then
amended or supplemented, to comply with applicable law, the Company
will immediately notify you by telephone (with confirmation in writing)
to suspend solicitation of offers to purchase Program Securities and,
if so notified by the Company, you shall forthwith suspend such
solicitation and cease using the Prospectus, as then amended or
supplemented. If the Company shall decide to amend or supplement the
Registration Statement or Prospectus, as then amended or supplemented,
it shall so advise you promptly by telephone (with confirmation in
writing) and, at its expense, shall prepare and cause to be filed
promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to you, that will correct such statement
or omission or effect such compliance and will supply such amended or
supplemented Prospectus to you in such quantities as you may reasonably
request. If any documents, certificates, opinions and letters furnished
to you pursuant to paragraph (e) below and Sections 5(a), 5(b) and 5(c)
in connection with the preparation and filing of such amendment or
supplement are satisfactory in all respects to you, upon the filing
with the Commission of such amendment or supplement to the Prospectus
or upon the effectiveness of an amendment to the Registration
Statement, you will resume the solicitation of offers to purchase
Program Securities hereunder. Notwithstanding any other provision of
this Section 3(b), until the distribution of any Program Securities you
may own as principal has been
14
completed, if any event described above in this paragraph (b) occurs,
the Company will, at its own expense, forthwith prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to you, will supply such amended or
supplemented Prospectus to you in such quantities as you may reasonably
request and shall furnish to you pursuant to paragraph (e) below and
Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and
letters as you may request in connection with the preparation and
filing of such amendment or supplement.
(c) The Company will make generally available to its security
holders and to you as soon as practicable earning statements that
satisfy the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder covering twelve
month periods beginning, in each case, not later than the first day of
the Company's fiscal quarter next following the "effective date" (as
defined in Rule 158 under the Securities Act) of the Registration
Statement with respect to each sale of Program Securities. If such
fiscal quarter is the first fiscal quarter of the Company's fiscal
year, such earning statement shall be made available not later than 90
days after the close of the period covered thereby and in all other
cases shall be made available not later than 45 days after the close of
the period covered thereby.
(d) The Company will furnish in New York City, without charge,
(i) to each Agent, a signed copy of the Registration Statement,
including exhibits and all amendments thereto, and as many copies of
the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto as you may reasonably request and
(ii) to each Agent that purchases Program Securities pursuant to a
Notes Terms Agreement or Units Terms Agreement or solicits an offer to
purchase Program Securities that is accepted by the Company, prior to
10:00 a.m. New York City time on the business day next succeeding the
date of such Notes Terms Agreement or Units Terms Agreement or the
acceptance of such offer, as many copies of the Prospectus, as then
amended or supplemented (including the Prospectus Supplement relating
to the Program Securities to be purchased pursuant to such Notes Terms
Agreement or Units Terms Agreement or accepted offer), as such Agent
may reasonably request.
(e) During the term of this Agreement, the Company shall
furnish to you such relevant documents and certificates of officers of
the Company relating to the business, operations and affairs of the
Company, the Registration Statement, the Basic Prospectus, any
amendments or supplements thereto, the Indentures, the Unit Agreement,
any Unit
15
Agreement Without Holders' Obligations, the Warrant Agreement, the
Notes, the Units, the Warrants, the Purchase Contracts, this Agreement,
the Administrative Procedures, any Notes Terms Agreement or Units Terms
Agreement and the performance by the Company of its obligations
hereunder or thereunder as you may from time to time reasonably
request.
(f) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or
potential downgrading or of any review for possible change that does
not indicate the direction of the possible change, in the rating
accorded the Company or any of the Company's securities by any
"nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act.
(g) The Company will, whether or not any sale of Program
Securities is consummated, pay all expenses incident to the performance
of its obligations under this Agreement and any Notes Terms Agreement
or Units Terms Agreement, including: (i) the preparation and filing of
the Registration Statement and the Prospectus and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the
Program Securities, (iii) the fees and disbursements of the Company's
counsel and accountants, of the Trustees and their counsel, of the Unit
Agent and its counsel, of the Warrant Agent and its counsel and of the
Principal Paying Agent and its counsel and any paying agents for the
Program Securities appointed by the Company, (iv) the fees and expenses
incurred with respect to the admission of the Series G Notes (and the
Series G Units, if application for such admission is made) to the
Official List of the UK Listing Authority and to trading on the London
Stock Exchange or to listing, trading and/or quotation by any other
listing authority, stock exchange and/or quotation system if so
required by Section 3(j), (v) the printing and delivery to you in
quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto and of the Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to
you of copies of the Indentures, the Unit Agreement, any Unit Agreement
Without Holders' Obligations and the Warrant Agreement, (vii) any fees
charged by rating agencies for the rating of the Program Securities,
(viii) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc., (ix)
the fees and disbursements of your counsel incurred in connection with
the offering and sale of the Program Securities, including any opinions
to be rendered by such counsel hereunder, and (x) any out-of-pocket
expenses incurred by you; provided that any advertising expenses
incurred by you shall have been approved by the Company.
16
(h) During the period beginning on the date of any Notes Terms
Agreement or Units Terms Agreement relating to either Notes or Units,
as the case may be, and continuing to and including the Settlement Date
with respect to such Notes Terms Agreement or Units Terms Agreement,
the Company will not, without your prior consent, offer, sell, contract
to sell or otherwise dispose of (i) in the case of Notes, any debt
securities of the Company substantially similar to the Notes set forth
in such Notes Terms Agreement (other than (A) the Notes that are to be
sold pursuant to such Notes Terms Agreement, (B) Notes previously
agreed to be sold by the Company and (C) commercial paper issued in the
ordinary course of business) or (ii) in the case of Units, any
securities substantially similar to such Units (other than (A) the
Units that are sold pursuant to such Units Terms Agreement or (B) Units
previously agreed to be sold by the Company), in each case, except as
may otherwise be provided in the applicable Notes Terms Agreement or
Units Terms Agreement.
(i) The Company will indemnify and hold you harmless against
any documentary, stamp or similar transfer or issue tax, including any
interest and penalties, on the issue of the Program Securities in
accordance with the terms of this Agreement, on the execution and
delivery of this Agreement, any Written Notes Terms Agreement or
Written Units Terms Agreement and on the exchange of any temporary
global Notes for definitive Notes or permanent global Notes, of any
temporary global Units for definitive Units or permanent global Units,
of any permanent global bearer Notes for definitive bearer Notes or of
any permanent global bearer Units for definitive bearer Units, that are
or may be required to be paid under the laws of the United Kingdom, the
United States or any political subdivision or taxing authority thereof
or therein.
(j) In connection with any application to admit the Series G
Notes or Series G Units to the Official List of the UK Listing
Authority and to trading on the London Stock Exchange, the Company will
furnish from time to time any and all documents, instruments,
information and undertakings and publish all advertisements or other
material that may be necessary in order to effect such listing and
trading and will maintain such listing and trading until, (i) in the
case of the Notes, none of the Series G Notes is outstanding, either as
part of a Unit or otherwise, or until such time as payment of
principal, premium, if any, and interest in respect of all the Series G
Notes, whether issued alone or as part of a Unit, has been duly
provided for, whichever is earlier and (ii) in the case of the Units,
none of the Series G Units is outstanding; provided, however, that if
the Company can no longer reasonably maintain such listing and trading,
including, but not limited to, in circumstances where obtaining or the
maintenance of such listing would require preparation of financial
statements in accordance with accounting standards other than U.S. GAAP
17
or where the proposed European Union Transparency Obligations Directive
(the "Directive") is implemented in a manner that, in the Company's
opinion, is burdensome, it will consider obtaining and maintaining the
quotation for, or listing and trading of, the Series G Notes and Series
G Units by such other listing authority, stock exchange and/or
quotation system (in the case of a delisting in response to the
Directive, outside the European Union) as you shall reasonably request.
However, if such an alternative listing is not available to the Company
or is, in the Company's opinion, burdensome, an alternative listing for
the Series G Notes and Series G Units need not be considered by the
Company. In addition, for so long as the Series G Notes and Series G
Units are admitted to listing, trading and/or quotation by a listing
authority, stock exchange and/or quotation system, and such listing
authority, stock exchange and/or quotation system so requires, the
Company will maintain in London, or in such other place as the Series G
Notes and Series G Units are listed (if the Series G Notes and Series G
Units are no longer listed on the London Stock Exchange), a paying
agent in respect of the Series G Notes or Series G Units, as required.
(k) In respect of any Notes which have a maturity of less than
one year where either (a) the issue proceeds of such Notes are received
by the Company in the United Kingdom or (b) the activity of issuing
such Notes is carried on from an establishment maintained by the
Company in the United Kingdom, the Company will issue such Notes only
if the following conditions apply (or the Notes can otherwise be issued
without contravention of Section 19 of the FSMA): (i) you represent,
warrant and agree in the terms relating to the Notes set out in Section
7(b)(v); and (ii) the redemption value of each such Note is not less
than L100,000 (or an amount of equivalent value denominated wholly or
partly in a currency other than sterling), and no part of any Note may
be transferred unless the redemption value of that part is not less
than L100,000 (or such an equivalent amount).
4. Conditions of the Obligations of the Agents. Your obligation to
solicit offers to purchase Program Securities as agents of the Company, your
obligation to purchase Program Securities as principals pursuant to any Notes
Terms Agreement or Units Terms Agreement and the obligation of any other
purchaser to purchase Program Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of your obligation to solicit
offers to purchase Program Securities, at the time of such solicitation, and, in
the case of your or any other purchaser's obligation to purchase Program
Securities, at the
18
time the Company accepts the offer to purchase such Program Securities and at
the time of issuance and delivery) and (in each case) to the following
additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may
be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus, as amended or
supplemented at the time of such solicitation or at the time
such offer to purchase was made, that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Program Securities on the terms
and in the manner contemplated by the Prospectus, as so
amended or supplemented;
(ii) there shall not have occurred such a change in
national or international financial, political or economic
conditions or currency exchange rates or exchange controls as
would in your view be likely to prejudice materially the
success of the offering and distribution of the Program
Securities or dealings in the Program Securities in the
secondary market; and
(iii) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded the Company or any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to you in writing by the Company prior to such solicitation or, in the
case of a purchase of Program Securities, before the offer to purchase such
Program Securities was made or (B) unless in each case described in (ii) above,
the relevant event shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities, before the
offer to purchase such Program Securities was made.
(b) On the Commencement Date and, if called for by any Notes
Terms Agreement or Units Terms Agreement, on the corresponding
Settlement Date, you shall have received:
19
(i) The opinion, dated as of such date, of Sidley
Austin Brown & Wood LLP, counsel to the Company, or of other
counsel satisfactory to you and who may be an officer of the
Company, to the following effect that:
(A) the Company has been duly incorporated,
is validly existing as a corporation in good standing
under the laws of the State of Delaware, has the
corporate power and authority to own its property and
to conduct its business as described in the
Prospectus, as amended or supplemented, and is duly
qualified to transact business and is in good
standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property
requires such qualification, except to the extent
that the failure to be so qualified or be in good
standing would not have a material adverse effect on
the Company and its consolidated subsidiaries, taken
as a whole;
(B) each of Morgan Stanley DW Inc., Discover
Bank, Morgan Stanley & Co. Incorporated and Morgan
Stanley International Holdings Inc. (each a "Material
Subsidiary") has been duly incorporated, is validly
existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property
and to conduct its business as described in the
Prospectus, as amended or supplemented, and is duly
qualified to transact business and is in good
standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property
requires such qualification, except to the extent
that the failure to be so qualified or be in good
standing would not have a material adverse effect on
the Company and its consolidated subsidiaries, taken
as a whole;
(C) each of the Company and its Material
Subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations
and filings with, all federal, state, local and other
governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to
own, lease, license and use its properties and assets
and to conduct its business in the manner described
in the Prospectus, as amended or supplemented, except
to the extent that the failure to obtain or file
would not have
20
a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(D) each of this Agreement and any
applicable Written Notes Terms Agreement or Written
Units Terms Agreement has been duly authorized,
executed and delivered by the Company;
(E) each Indenture has been duly qualified
under the Trust Indenture Act and each of the Senior
Indenture, the Subordinated Indenture, the Unit
Agreement and the Warrant Agreement has been duly
authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as
the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether
such enforceability is considered at a proceeding in
equity or at law;
(F) the Unit Agreement Without Holders'
Obligations, if any, has been duly authorized,
executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable in
accordance with its terms except as the
enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether
such enforceability is considered at a proceeding in
equity or at law;
(G) the forms of Notes (including the form
of Cash-settled Pre-paid Purchase Contracts), whether
issued alone or as part of a Unit, have been duly
authorized and established in conformity with the
provisions of the relevant Indenture and, if the
Notes and the Cash-settled Pre-paid Purchase
Contracts had been executed by the Company and
authenticated by the relevant Trustee or its duly
appointed agent in accordance with the provisions of
the relevant Indenture and delivered to and duly paid
for by the purchasers thereof on the date of such
opinion, such Notes and the Cash-
21
settled Pre-paid Purchase Contracts would be entitled
to the benefits of such Indenture and would be valid
and binding obligations of the Company, enforceable
in accordance with their respective terms except as
the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether
such enforceability is considered at a proceeding in
equity or at law;
(H) the forms of Units under the Unit
Agreement, including the forms of Warrants,
Physically-settled Pre-paid Purchase Contracts and
Non-Pre-paid Purchase Contracts, have been duly
authorized and established in conformity with the
provisions of (i) in the case of Units under the Unit
Agreement, Physically-settled Pre-paid Purchase
Contracts and Non-Pre-paid Purchase Contracts, the
Unit Agreement and (ii) in the case of the Warrants,
the Warrant Agreement. If such Units (including the
Warrants, the Physically-settled Prepaid Purchase
Contracts and the Non-Pre-paid Purchase Contracts)
had been delivered to and duly paid for by the
purchasers thereof (and any Purchase Contracts
included therein had been executed by the Company and
countersigned by the Unit Agent and any Warrants
included therein had been executed by the Company and
countersigned by the Warrant Agent) on the date of
such opinion, such Units (including the
Physically-settled Prepaid Purchase Contracts, the
Non-pre-paid Purchase Contracts and the Warrants
contained therein) would be entitled to the benefits
of the Unit Agreement and, in the case of the
Warrants, the Warrant Agreement, and would be valid
and binding obligations of the Company, enforceable
in accordance with their respective terms except as
the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether
such enforceability is considered at a proceeding in
equity or at law;
(I) the Units under the Unit Agreement
Without Holders' Obligations have been duly
authorized (and the forms of any Warrants included
therein have
22
been duly authorized and established in conformity
with the provisions of the Warrant Agreement), and if
such Units (including any such Warrants included
therein) had been delivered to and duly paid for by
the purchasers thereof (and any Warrants included
therein had been executed by the Company and
countersigned by the Warrant Agent) on the date of
such opinion, such Units (including the Warrants
contained therein) would be entitled to the benefits
of the Unit Agreement Without Holders' Obligations
and in the case of the Warrants, the Warrant
Agreement, and would be valid and binding obligations
of the Company, enforceable in accordance with their
respective terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally
and (ii) is subject to general principles of equity,
regardless of whether such enforceability is
considered at a proceeding in equity or at law;
(J) the execution and delivery by the
Company of the Notes and Cash-settled Pre-paid
Purchase Contracts (whether issued alone or as part
of a Unit), the Units (including any Purchase
Contract or Warrant included therein), the
Indentures, the Unit Agreement, any Unit Agreement
Without Holders' Obligations, the Warrant Agreement
and any applicable Written Notes Terms Agreement or
Written Units Terms Agreement and the performance by
the Company of its obligations under this Agreement,
the Notes, the Units, the Indentures, the Unit
Agreement, any Unit Agreement Without Holders'
Obligations, the Warrant Agreement and any applicable
Notes Terms Agreement or Units Terms Agreement will
not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the
Company or, to the best of such counsel's knowledge,
any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material
to the Company and its consolidated subsidiaries,
taken as a whole, or, to the best of such counsel's
knowledge, any judgment, order or decree of any U.S.
governmental body, agency or court having
jurisdiction over the Company or any of its
consolidated subsidiaries, and no consent, approval,
authorization or order of or
23
qualification with any U.S. governmental body or
agency is required for the performance by the Company
of its obligations under this Agreement, the Notes,
the Cash-settled Pre-paid Purchase Contracts, the
Units (including any Purchase Contracts or Warrants
included therein), the Indentures, the Unit
Agreement, any Unit Agreement Without Holders'
Obligations, the Warrant Agreement and any applicable
Notes Terms Agreement or Units Terms Agreement;
provided, however, that no opinion is expressed on
whether the purchase of the Program Securities
constitutes a "prohibited transaction" under Section
406 of the Employee Retirement Income Security Act of
1974, as amended, or Section 4975 of the Internal
Revenue Code of 1986, as amended;
(K) the statements (1) in the Prospectus, as
then amended or supplemented, under the captions
"Description of Notes" (in the Prospectus
Supplement), "Description of Debt Securities" (in the
Basic Prospectus), "Description of Units" (in the
Prospectus Supplement and in the Basic Prospectus),
"Plan of Distribution" (in the Prospectus Supplement
and in the Basic Prospectus), "Description of
Purchase Contracts" (in the Basic Prospectus) and
"Description of Warrants" (in the Basic Prospectus),
(2) in the Registration Statement, as then amended or
supplemented, under Item 15, (3) in "Item 3. Legal
Proceedings" of the most recent annual report on Form
10-K incorporated by reference in the Prospectus and
(4) in "Item 1. Legal Proceedings" of Part II of the
quarterly reports on Form 10-Q, if any, filed since
such annual report and incorporated by reference in
the Prospectus, in each case insofar as such
statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly
present the information called for with respect to
such legal matters, documents and proceedings and
fairly summarize the matters referred to therein;
(L) after due inquiry, such counsel does not
know of any legal or governmental proceedings pending
or threatened to which the Company or any of its
consolidated subsidiaries is a party or to which any
of the properties of the Company or any of its
consolidated subsidiaries is subject that are
required to be described in the Registration
Statement or the Prospectus, as then
24
amended or supplemented, and are not so described or
of any U.S. federal or state statutes, regulations,
contracts or other documents governed by U.S. federal
or state law that are required to be described in the
Registration Statement or the Prospectus, as then
amended or supplemented, or to be filed or
incorporated by reference as exhibits to such
Registration Statement that are not described, filed
or incorporated by reference as required;
(M) the Company is not, and after giving
effect to the offering and sale of the Program
Securities and the application of the proceeds
thereof as described in the Prospectus, will not be
required to register as, an "investment company" as
such term is defined in the Investment Company Act of
1940, as amended; and
(N) such counsel (1) believes that each
document, if any, filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus as
then amended or supplemented (except as to financial
statements and schedules and other financial and
statistical data included therein, as to which such
counsel need not express any belief) complied when so
filed as to form in all material respects with the
Exchange Act and the applicable rules and regulations
of the Commission thereunder, (2) has no reason to
believe that any part of the Registration Statement
(except as to financial statements and schedules and
other financial and statistical data included
therein, as to which such counsel need not express
any belief, and except for that part of the
Registration Statement that constitutes the Forms T-1
heretofore referred to), as then amended, if
applicable, when such part became effective
contained, and the Registration Statement (except as
to financial statements and schedules and other
financial and statistical data included therein, as
to which such counsel need not express any belief,
and except for the part of the Registration Statement
that constitutes the Forms T-1) as of the date such
opinion is delivered contains, any untrue statement
of a material fact or omitted or omits to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, (3) believes that the Registration
Statement and Prospectus, as then amended or
supplemented, if applicable (except as to financial
statements and schedules and other financial and
25
statistical data included therein, as to which such
counsel need not express any belief), complied as to
form in all material respects with the Securities Act
and the applicable rules and regulations of the
Commission thereunder and (4) has no reason to
believe that the Prospectus, as then amended or
supplemented, if applicable (except as to financial
statements and schedules and other financial and
statistical data included therein, as to which such
counsel need not express any belief), as of the date
such opinion is delivered contains any untrue
statement of a material fact or omits to state a
material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; provided
that in the case of an opinion delivered on the
Commencement Date or pursuant to Section 5(b), the
opinion and belief set forth in clauses (3) and (4)
above shall be deemed not to cover information
concerning an offering of particular Notes or Units
to the extent such information will be set forth in a
supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of Davis
Polk & Wardwell, your special counsel, covering the matters in
subparagraphs (D), (E), (F), (G), (H), (I) and (K) (with
respect to statements in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes" (in
the Prospectus Supplement), "Description of Debt Securities"
(in the Basic Prospectus), "Description of Units" (in the
Prospectus Supplement and the Basic Prospectus), "Plan of
Distribution" (in the Prospectus Supplement and in the Basic
Prospectus), "Description of Purchase Contracts" (in the Basic
Prospectus) and "Description of Warrants" (in the Basic
Prospectus)) and clauses (2), (3) and (4) of subparagraph (N)
in paragraph (b)(i) above.
The opinions described in subparagraphs (F) and (I) need only be
contained in an opinion delivered on a Settlement Date related to an offering of
Units under a Unit Agreement Without Holders' Obligations to be executed on or
prior to such Settlement Date.
Notwithstanding the foregoing, the opinions described in subparagraphs
(G) (except as to due authorization of the Notes and Cash-settled Pre-paid
Purchase Contracts), (H) (except as to due authorization of the Units, Warrants,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase
Contracts), (I) (except as to due authorization of the Units and Warrants), (J),
(K)(1) and (N)(3) and (4) of paragraph (b)(i) above, when contained in an
opinion
26
delivered on the Commencement Date or pursuant to Section 5(b), shall be deemed
not to address the application of the Commodity Exchange Act, as amended, or the
rules, regulations or interpretations of the Commodity Futures Trading
Commission to Program Securities the payments of principal or interest on which,
or any other payments with respect to which, will be determined by reference to
one or more currency exchange rates, commodity prices, securities of entities
affiliated or unaffiliated with the Company, baskets of such securities, equity
indices or other factors.
With respect to subparagraph (N) of paragraph (b)(i) above, if such
opinion is given by counsel who is also an officer of the Company, such counsel
may state that his or her opinion and belief are based upon his or her
participation, or the participation of someone under his or her supervision, in
the preparation of the Registration Statement and Prospectus and any amendments
or supplements thereto and documents incorporated therein by reference and
review and discussion of the contents thereof, but are without independent check
or verification, except as specified. With respect to subparagraph (N) of
paragraph (b)(i) above, Davis Polk & Wardwell and, if Sidley Austin Brown & Wood
LLP is giving such opinion, Sidley Austin Brown & Wood LLP may state that their
opinion and belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
(but not including documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents incorporated therein by
reference), but are without independent check or verification, except as
specified.
(iii) The opinion, dated as of such date, of Sidley
Austin Brown & Wood LLP, special counsel to the Company, to
the effect that the statements set forth under the caption
"United States Federal Taxation" in the Prospectus Supplement
and under the caption "Forms of Securities Limitations on
Issuance of Bearer Securities" in the Basic Prospectus,
insofar as such statements relate to statements of law or
legal conclusions under the laws of the United States or
matters of United States law, fairly present the information
called for and fairly summarize the matters referred to
therein.
The opinion of Sidley Austin Brown & Wood LLP described in paragraph
(b)(iii) above and in paragraph (b)(i) above, if such opinion is given by Sidley
Austin Brown & Wood LLP, shall be rendered to you at the request of the Company
and shall so state therein.
(c) On the Commencement Date and, if called for by any Notes
Terms Agreement or Units Terms Agreement, on the corresponding
Settlement Date, you shall have received a certificate, dated the
27
Commencement Date or such Settlement Date, as the case may be, and
signed by an executive officer of the Company to the effect set forth
in subparagraph (a)(iii) above and to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct as of such date and that the Company has
complied with all of the agreements and satisfied all of the conditions
on its part to be performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely upon the best of
his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes
Terms Agreement or Units Terms Agreement, on the corresponding
Settlement Date, the Company's independent auditors shall have
furnished to you a letter or letters, dated as of the Commencement Date
or such Settlement Date, as the case may be, in form and substance
satisfactory to you containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Prospectus, as then amended or supplemented; provided that each letter
so furnished shall use a "cut-off date" no more than three business
days prior to the date of such letter.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to you such appropriate further
information, certificates and documents as you may reasonably request.
(f) On the Commencement Date, application to admit the Series
G Notes issued by the Company during the twelve months following the
date of the approval of such application to listing on the Official
List of the UK Listing Authority and to trading on the London Stock
Exchange shall have been made and, prior to the issuance of the first
Series G Note offered pursuant to this Agreement, such admission to
listing and to trading shall have been granted, subject to official
notice of issuance.
5. Additional Agreements of the Company. (a) Each time the Registration
Statement or Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for (i) in the case of Notes, a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes issued alone or as part of a Unit, (ii) in the case of
Units, (x) a change in the exercise price, exercise date or period or expiration
of an underlying Warrant or (y) a change in the settlement date or purchase or
sale price of an underlying Purchase Contract or (iii) a change you deem to be
immaterial), the Company will deliver or cause to be delivered forthwith to you
a
28
certificate signed by an executive officer of the Company, dated the date of
such amendment or supplement, as the case may be, in form reasonably
satisfactory to you, of the same tenor as the certificate referred to in Section
4(c) relating to the Registration Statement or the Prospectus as amended or
supplemented to the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to Section
5(a) (other than any amendment or supplement to the Registration Statement or
Prospectus caused by the filing of a Current Report on Form 8-K unless you shall
reasonably request based on disclosure included or omitted from such Report),
the Company will furnish or cause to be furnished forthwith to you a written
opinion of counsel for the Company. Any such opinion shall be dated the date of
such amendment or supplement, as the case may be, shall be in a form
satisfactory to you and shall be of the same tenor as the opinions referred to
in Section 4(b), but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion.
In lieu of such opinion, counsel last furnishing such an opinion to you may
furnish to you a letter to the effect that you may rely on such last opinion to
the same extent as though it were dated the date of such letter (except that
statements in such last opinion will be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented to the time of delivery
of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended
or supplemented to set forth amended or supplemental financial information or
such amended or supplemental information is incorporated by reference in the
Prospectus, the Company shall cause its independent auditors forthwith to
furnish you with a letter, dated the date of such amendment or supplement, as
the case may be, in form satisfactory to you, of the same tenor as the letter
referred to in Section 4(d), with regard to the amended or supplemental
financial information included or incorporated by reference in the Registration
Statement or the Prospectus as amended or supplemented to the date of such
letter; provided that each letter so furnished shall use a "cut-off date" no
more than three business days prior to the date of such letter.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless you and each person, if any, who controls you within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the
29
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to you
furnished to the Company in writing by you expressly for use therein.
(b) You agree to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to you, but only with reference to
information relating to you furnished to the Company in writing by you expressly
for use in the Registration Statement or the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by you, in the case of parties indemnified pursuant to
paragraph (a) above, and by the Company, in the case of parties indemnified
pursuant to paragraph (b) above. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there were to be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated
30
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Program Securities, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and you on the other hand from the offering of such Program Securities
or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and you on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and you on the other
hand in connection with the offering of such Program Securities shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of such Program Securities (before deducting expenses) received by the
Company bear to the total discounts and commissions received by you in respect
thereof. The relative fault of the Company on the one hand and of you on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by you and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and you agree that it would not be just or equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages and liabilities
31
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, you shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Program Securities referred to in paragraph (d) above that
were offered and sold to the public through you exceeds the amount of any
damages that you have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
6 and the representations, warranties and other statements of the Company, its
officers and you set forth in or made pursuant to this Agreement or any Notes
Terms Agreement or Units Terms Agreement will remain operative and in full force
and effect regardless of (i) any termination of this Agreement or any such Notes
Terms Agreement or Units Terms Agreement, (ii) any investigation made by or on
behalf of you or any person controlling you or by or on behalf of the Company,
its officers or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Program Securities.
7. Offering Restrictions. You hereby represent to the Company and agree
with respect to the Program Securities that:
(a) (i) you have not (A) offered or sold and will not offer or
sell during the Restricted Period (as defined below) Bearer Notes
(whether offered alone or as part of a Unit) (including any Note that
is exchangeable for Bearer Notes) directly or indirectly in the United
States (as defined below) or to or for the account of any United States
person (as defined below), other than to a Qualifying Foreign Branch
(as defined below) or to certain other persons as provided under United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(1)(iii)(B) and
(C); and (B) delivered and will not deliver within the United States
definitive Bearer Notes that are sold during the Restricted Period;
(ii) you have, and throughout the Restricted Period
will have, in effect procedures reasonably designed to ensure
that your employees or agents who are directly engaged in
selling Bearer Notes (whether offered alone or as part of a
Unit) are aware that such Bearer Notes may not be offered or
sold during the Restricted Period to a person who is within
the United States
32
or to a United States person, except as permitted by Section
7(a)(i)(A) above;
(iii) if you are a United States person, you are
acquiring the Bearer Notes (whether offered alone or as part
of a Unit) for purposes of resale in connection with their
original issuance and if you retain Bearer Notes for your own
account, you will only do so in accordance with the
requirements of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6);
(iv) if you transfer to any affiliate Bearer Notes
(whether offered alone or as part of a Unit) for the purpose
of offering or selling such Bearer Notes during the Restricted
Period, you will either (A) obtain from such affiliate for the
benefit of the Company the representations and agreements
contained in clauses (i), (ii) and (iii) above or (B) repeat
and confirm the representations and agreements contained in
clauses (i), (ii) and (iii) above on such affiliate's behalf
and obtain from such affiliate the authority to so obligate
it; and
(v) you will obtain for the benefit of the Company
the representations and agreements contained in clauses (i),
(ii), (iii) and (iv) above from any person other than your
affiliate with whom you enter into a written contract, within
the meaning of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(4), for the offer or sale during the
Restricted Period of Bearer Notes (whether offered alone or as
part of a Unit).
For purposes of this Section 7(a), an offer or sale will be considered to be
made in the United States if the offeror or seller of such Notes (whether
offered alone or as part of a Unit) has an address within the United States for
the offeree or purchaser of such Notes with respect to the offer or sale. As
used in this Section 7(a), "United States person" means a citizen or resident of
the United States, a corporation or partnership (including an entity treated as
a corporation or partnership for United States federal income tax purposes)
created or organized in or under the laws of the United States, any State
thereof or the District of Columbia, an estate the income of which is subject to
United States federal income taxation regardless of its source or a trust if
both (x) a court within the United States is able to exercise primary
supervision over the administration of the trust and (y) one or more United
States persons have the authority to control all substantial decisions of the
trust; "United States" means the United States (including the States and the
District of Columbia), its territories, its possessions and any other areas
subject to its jurisdiction; "Qualifying Foreign Branch" means a branch of a
United States financial institution, as defined in the applicable United States
Treasury Regulations, located outside the United States
33
that is purchasing for its own account or for resale and that has agreed, as a
condition to purchase, to comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended (the
"Code"), and the regulations thereunder; and "Restricted Period" with respect to
each issuance means the period which begins on the earlier of the date on which
the Company receives the proceeds of the sale of Notes with respect to such
issuance or the first date on which the Notes are offered to persons other than
you, and which ends 40 days after the date on which the Company receives the
proceeds of the sale of such Notes; provided that with respect to a Note held as
part of an unsold allotment or subscription, any offer or sale of such Note by
the Company or you shall be deemed to be during the Restricted Period.
(b) (i) In relation to Notes which have a maturity of one year
or more and which are to be admitted to the Official List of the UK
Listing Authority, you have not offered or sold and will not offer or
sell any such Notes to persons in the United Kingdom prior to the
admission of such Notes to listing in accordance with Part VI of the
FSMA, except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal
or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer
to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995 or the FSMA, as amended;
(ii) in relation to Notes which have a maturity of
one year or more and which are not to be admitted to the
Official List of the UK Listing Authority, you have not
offered or sold and, prior to the expiry of the period of six
months from the date of issue of such Notes, will not offer or
sell any such Notes to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in
an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995;
(iii) you have complied with and will comply with all
applicable provisions of the FSMA with respect to anything
done by you in relation to the Notes in, from or otherwise
involving the United Kingdom;
(iv) you have only communicated or caused to be
communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in
34
investment activity (within the meaning of Section 21 of the
FSMA) received by you in connection with the issue or sale of
Notes in circumstances in which Section 21(1) of the FSMA does
not apply to the Company; and
(v) with respect to any Notes which have a maturity
of less than one year, (A) you are a person whose ordinary
activities involve you in acquiring, holding, managing or
disposing of investments (as principal or agent) for the
purposes of your business, and (B) you have not offered or
sold and will not offer or sell any such Notes other than to
persons (1) whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or
(2) who it is reasonable to expect will acquire, hold, manage
or dispose of investments (as principal or agent) for the
purposes of their businesses, where the issue of the Notes
would otherwise constitute a contravention of Section 19 of
the FSMA by the Company.
(c) (i) You have complied and will comply with all applicable
provisions of the FSMA in respect to anything done in relation to any
Warrants in, from or otherwise involving the United Kingdom. Any
invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the FSMA) received by any person in connection
with the issue or sale of any Warrants has only communicated or caused
to be communicated and will only communicate or cause to be
communicated in circumstances in which Section 21(l) of the FSMA does
not apply to the Company.
(ii) If the Warrants give entitlements to securities
within the meaning of the Public Offers of Securities
Regulations 1995, you have not offered or sold and will not
offer or sell any such Warrants to persons in the United
Kingdom except to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the
United Kingdom within the meaning of those Regulations.
(d) You will not purchase, deliver, offer or sell any Program
Securities or possess or distribute offering material in relation to
such Program Securities in any jurisdiction if such purchase, delivery,
offer or sale or the possession or distribution of such offering
material would not be in compliance with any applicable law or
regulation or if any consent,
35
approval or permission is needed for such purchase, delivery, offer or
sale or the possession or distribution by you or for or on behalf of
the Company unless such consent, approval or permission has been
previously obtained. Without prejudice to the provisions of this
Section 7 above and subject to the obligations of the Company set forth
in Section 3 of this Agreement, the Company shall have no
responsibility for, and you will obtain, any consent, approval or
permission required by you for the subscription, offer, sale or
delivery by you of Program Securities, or the possession or
distribution of any offering materials, under the laws and regulations
in force in any jurisdiction to which you are subject or in or from
which you make any subscription, offer, sale or delivery.
(e) You will not offer or sell any Program Securities,
directly or indirectly, in Japan or to, or for the benefit of, any
resident of Japan (which term as used herein means any person resident
in Japan including any corporation or other entity organized under the
laws of Japan) or to others for the re-offering or re-sale, directly or
indirectly, in Japan or to a resident of Japan except pursuant to an
exemption from the registration requirements of, and otherwise in
compliance with, the Securities and Exchange Law of Japan and other
relevant laws and regulations of Japan.
(f) Each of the Agents and the Company represents and agrees
that Program Securities will be issued outside the Republic of France,
that it will not offer or sell any Program Securities in the Republic
of France and will not distribute or cause to be distributed in the
Republic of France the Prospectus or any other offering material
relating to Program Securities, except to (i) qualified investors
(investisseurs qualifies) and/or (ii) within a restricted circle of
investors (cercle restreint d'investisseurs), all as defined in and in
accordance with Article L.411-2 of the Code Monetaire et Financier and
Decree no 98-880 dated 1st October, 1998.
8. Position of the Agent. In acting under this Agreement and in
connection with the sale of any Program Securities by the Company (other than
Program Securities sold to you pursuant to a Notes Terms Agreement or Units
Terms Agreement, as the case may be), you are acting solely as agent of the
Company and do not assume any obligation towards or relationship of agency or
trust with any purchaser of Program Securities. You shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Program Securities has been solicited by you and accepted by
the Company, but you shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Program Securities to a purchaser whose
offer it has accepted, the Company shall hold you harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to you the commission you would have received had such
sale been consummated.
36
9. Termination. This Agreement may be terminated at any time either by
the Company or by you upon the giving of written notice of such termination to
the other parties hereto, but without prejudice to any rights, obligations or
liabilities of the other parties hereto accrued or incurred prior to such
termination. The termination of this Agreement shall not require termination of
any Notes Terms Agreement or Units Terms Agreement, and the termination of any
such Notes Terms Agreement or Units Terms Agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a), the last sentence of Section 3(b) and
Sections 3(c), 3(g), 3(i), 3(j), 6, 7, 8, 10, 11 and 13 shall survive; provided
that if at the time of termination an offer to purchase Program Securities has
been accepted by the Company but the time of delivery to the purchaser or its
agent of such Program Securities has not occurred, the provisions of Sections 1,
2(b), 2(c), 3(a), 3(d), 3(e), 3(f), 3(h), 4 and 5 shall also survive until such
delivery has been made.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and (a) if sent to Morgan Stanley & Co. International
Limited, will be mailed, delivered or telefaxed and confirmed to Morgan Stanley
& Co. International Limited, 25 Cabot Square, Canary Wharf, London E14 4QA,
United Kingdom, to the attention of Global Capital Markets - Head of Transaction
Management Group (Telephone No.: +44-20-7677-7799; Telecopy No.:
+44-20-7677-7999) and (b) if sent to the Company, will be mailed, delivered or
telefaxed and confirmed to Morgan Stanley, 1221 Avenue of the Americas, New
York, New York 10020, Attention: Treasurer (Telecopy No.: 212-762-7337) (or to
such other address as the Company may designate).
11. Successors. This Agreement and any Notes Terms Agreement or Units
Terms Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers, directors and
controlling persons referred to in Section 6 and the purchasers of Notes and
Units (to the extent expressly provided in Section 4), and no other person will
have any right or obligation hereunder.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
37
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
MORGAN STANLEY
By:
--------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:
------------------------------
Name:
Title:
EXHIBIT A
MORGAN STANLEY
GLOBAL MEDIUM-TERM NOTES, SERIES G AND SERIES H
NOTES TERMS AGREEMENT
_______________, 200_
Morgan Stanley
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated [______], 2004
(the "Euro Distribution Agreement")
---------------------------------------------------
The undersigned agrees to purchase your Global Medium-Term Notes,
Series G/H, [specific designation] having the following terms:
[Enlarge/Download Table]
All Notes Fixed Rate Notes Floating Rate Notes
-----------------------------------------------------------------------------------------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset Date:
Currencies (if any):
A-1
[Enlarge/Download Table]
All Notes Fixed Rate Notes Floating Rate Notes
-----------------------------------------------------------------------------------------------------------
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Interest Payment Period: Reference Dealers: Maximum Interest Rate:
Maturity Date: Face Amount (if any): Minimum Interest Rate:
Optional Repayment Fixed Amount of each Calculation Agent:
Date(s): Indexed Currency (if any):
Optional Redemption Aggregate Fixed Amount of Reporting Service:
Date(s): each Indexed Currency (if
any):
Initial Redemption Date: Index Currency:
Initial Redemption Designated CMT Telerate
Percentage: Page:
Annual Redemption Designated CMT Maturity
Percentage Reduction: Index:
Ranking:
Series:
Minimum Denominations:
Other Terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and 10
through 14 of the Euro Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is also subject to termination on the terms incorporated
by reference herein. If this Agreement is so terminated, the provisions of
Sections 3(g), 6, 10, 11 and 13 of the Euro Distribution Agreement shall survive
for the purposes of this Agreement.
A-2
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the Euro Distribution Agreement will be required:
________________.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:
--------------------------------
Name:
Title:
Accepted:
MORGAN STANLEY
By:
-----------------------------
Name:
Title:
A-3
EXHIBIT A-1
MORGAN STANLEY
GLOBAL UNITS, SERIES G AND SERIES H
UNITS TERMS AGREEMENT
_______________, 200_
Morgan Stanley
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated [__________],
2004 (the "Euro Distribution Agreement")
-------------------------------------------------
The undersigned agrees to purchase your Global Units, Series G/H,
[specified designation] having the following terms:
[Enlarge/Download Table]
Warrants Issued as Part Purchase Contracts
All Units: of a Unit: Issued as Part of a Unit:
---------------------------------------------------------------------------------------------------
Settlement Date and Time: Price: Price:
Number (Face Amount): Designation of the Series of Designation of the Series of
Warrants: [Call] [Put] Purchase Contracts:
Warrants [Purchase][Sale] Purchase
Contracts
Purchase Price: Warrant Property: Aggregate Number of
Purchase Contracts:
Specified Currency: Aggregate Number of
Warrants: Purchase Contract Property:
Severability: Date(s) upon which Quantity per Purchase
Warrants may be exercised: Contract:
Other Terms: Currency in which exercise [Purchase] [Sale] Price:
payments shall be made:
A-1-1
[Enlarge/Download Table]
Warrants Issued as Part Purchase Contracts
All Units: of a Unit: Issued as Part of a Unit:
---------------------------------------------------------------------------------------------------
Exchange Rate (or method Settlement Date:
of calculation:
Expiration Date: Payment Location:
Form of Settlement: Method of Settlement:
[Call Price:](1)
[Formula for determining Currency of Settlement
Cash Settlement Value:](2) Payment:
[Amount of Warrant Contract Fees, if any:
Property Salable per
Warrant:](3)
[Put Price for such specified Corporation Acceleration:
amount of Warrant Property
per Warrant:] 2
[Method of delivery of any Holders' Acceleration:
Warrant Property to be
delivered for sale upon
exercise of Warrants:] 3
Other Terms: Redemption Provisions:
Other Terms:
-------------------------
(1) Applicable to Call Warrants
(2) Applicable to Put Warrants
(3) Applicable to Put Warrants only if such Put Warrants contemplate that
the holder deliver Warrant Property to settle Put Warrants
A-1-2
[Enlarge/Download Table]
All Notes Issued as Part of Fixed Rate Notes Issued Floating Rate Notes
a Unit: as Part of a Unit: Issued as Part of a Unit:
-----------------------------------------------------------------------------------------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset Date:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Interest Payment Period: Reference Dealers: Maximum Interest Rate:
Maturity Date: Face Amount (if any): Minimum Interest Rate:
Optional Repayment Fixed Amount of each Calculation Agent:
Date(s): Indexed Currency (if any):
Optional Redemption Aggregate Fixed Amount of Reporting Service:
Date(s): each Indexed Currency (if
any):
Initial Redemption Date: Index Currency:
Initial Redemption Designated CMT Telerate
Percentage: Page:
Annual Redemption Designated CMT Maturity
Percentage Reduction: Index:
Ranking:
A-1-3
[Enlarge/Download Table]
All Notes Issued as Part of Fixed Rate Notes Issued Floating Rate Notes
a Unit: as Part of a Unit: Issued as Part of a Unit:
-----------------------------------------------------------------------------------------------------------
Series:
Minimum Denominations:
Other Terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and 10
through 14 of the Euro Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.(4)
This Agreement is also subject to termination on the terms incorporated
by reference herein. If this Agreement is terminated, the provisions of Sections
3(g), 6, 10, 11 and 13 of the Euro Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Euro Distribution Agreement will be
required: ___________.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:
--------------------------------
Name:
Title:
-----------------------
(4) In the case of Physically-settled Pre-paid Purchase Contracts issued
under a Unit Agreement Without Holders' Obligations, additional representations
and warranties will be added with respect to such Physically-settled Pre-paid
Purchase Contracts and the opinions of counsel delivered pursuant to Sections
4(b)(i) and 4(b)(ii) will cover such additional representations and warranties,
as appropriate.
A-1-4
Accepted:
MORGAN STANLEY
By:
-------------------------------
Name:
Title:
A-1-5
EXHIBIT B
MORGAN STANLEY
GLOBAL MEDIUM-TERM NOTES, SERIES G AND SERIES H
GLOBAL UNITS, SERIES G AND SERIES H
ADMINISTRATIVE PROCEDURES
Explained below are the administrative procedures and specific terms of
the offering of (i) Global Medium-Term Notes, Series G (the "Series G Notes"),
(ii) Global Medium-Term Notes, Series H (the "Series H Notes" and together with
the Series G Notes, the "Notes"), (iii) Global Units, Series G (the "Series G
Units") and (iv) Global Units, Series H (the "Series H Units" and together with
the Series G Units, the "Units", and the Units together with the Notes, the
"Program Securities"), on a continuous basis by Morgan Stanley (the "Company")
pursuant to the Euro Distribution Agreement dated [__________], 2004 (as may be
amended from time to time, the "Distribution Agreement") between the Company and
Morgan Stanley & Co. International Limited (the "Agent"). The Notes may be
issued, either alone or as part of a Unit, in registered form without coupons
("Registered Notes"), in bearer form with or without coupons ("Bearer Notes") or
in any combination of Registered Notes and Bearer Notes. The Units may be issued
in registered form ("Registered Units"), in bearer form ("Bearer Units") or in
any combination of Registered Units and Bearer Units. The securities comprised
by a Unit will be issued in the same form as such Unit. Bearer Notes and Bearer
Units initially will be represented by, in the case of Bearer Notes, a Temporary
Global Note and, in the case of Bearer Units, a Temporary Global Unit. Such
Temporary Global Note and Temporary Global Unit will subsequently be represented
by, in the case of the Temporary Global Note, a Permanent Global Note and, in
the case of the Temporary Global Unit, a Permanent Global Unit. Interests in a
Permanent Global Note may be exchanged, in whole, for individual definitive
Bearer Notes with or without coupons attached. Definitive Bearer Notes may be
exchanged, if the applicable Pricing Supplement so specifies, in whole or in
part, for Registered Notes. Interests in a Permanent Global Unit may be
exchanged, in whole, for individual definitive Bearer Units. Definitive Bearer
Units may be exchanged, if the applicable Pricing Supplement so specifies, in
whole or in part, for Registered Units.
The Notes may be issued as senior indebtedness (the "Senior Notes") or
subordinated indebtedness (the "Subordinated Notes") of the Company, and as used
herein the term "Notes" includes the Senior Notes and the Subordinated
B-1
Notes. The Senior Notes will be issued, either alone or as part of a Unit,
pursuant to the provisions of an amended and restated senior indenture dated
November 1, 2004 (as may be supplemented or amended from time to time, the
"Senior Debt Indenture"), between the Company and JPMorgan Chase Bank, as
trustee (the "Senior Debt Trustee"). The Subordinated Notes will be issued
pursuant to the provisions of a subordinated indenture, dated as of October 1,
2004 (as may be supplemented or amended from time to time, the "Subordinated
Debt Indenture"), between the Company and J.P. Morgan Trust Company, National
Association, as trustee. The Senior Debt Indenture and the Subordinated Debt
Indenture are sometimes hereinafter referred to individually as an "Indenture"
and collectively as the "Indentures." Purchase contracts ("Purchase Contracts")
that require holders to satisfy their obligations thereunder when such Purchase
Contracts are issued are referred to as "Pre-paid Purchase Contracts." Pre-paid
Purchase Contracts that settle in cash ("Cash-settled Pre-paid Purchase
Contracts") generally will be issued under the Indentures. Pre-paid Purchase
Contracts that do not settle in cash ("Physically-settled Pre-paid Purchase
Contracts") generally will be issued under the Unit Agreement or the Unit
Agreement Without Holders' Obligations (each as defined below).
Unless otherwise specified in the applicable Pricing Supplement, the
Units will be issued (1) pursuant to the Unit Agreement dated as of November 1,
2004, among the Company, JPMorgan Chase Bank, as Unit Agent, as Collateral
Agent, as Trustee and Paying Agent under the Indenture referred to therein, and
as Warrant Agent under the Warrant Agreement referred to therein, and the
holders from time to time of the Units described therein (as may be amended from
time to time, the "Unit Agreement") or (ii) if Units do not include Purchase
Contracts (or include only Pre-paid Purchase Contracts), pursuant to a unit
agreement among the Company and JPMorgan Chase Bank, as Unit Agent, as Trustee
and Paying Agent under the Indenture referred to therein, and as Warrant Agent
under the Warrant Agreement referred to therein, in the form of such agreement
filed as an exhibit to the Registration Statement (each such agreement, a "Unit
Agreement Without Holders' Obligations").(1) Units may include one or more (i)
Series G & H Senior Notes, (ii) warrants ("Warrants") entitling the holders
thereof to purchase or sell (a) securities issued by the Company or by an entity
not affiliated with the Company (or securities issued by an entity affiliated
with the Company in the case of Series H Units), a basket of such securities, an
index or indices of such securities or any combination of the above, (b)
currencies or (c) commodities, (iii) purchase contracts ("Purchase Contracts"),
including Pre-paid Purchase Contracts, requiring the holders thereof to purchase
or sell (a) securities issued by the Company or by an entity not affiliated with
the Company (or securities issued
--------------------------
(1) The Unit Agreement Without Holders' Obligations shall include
provisions to allow for the issuance of Pre-paid Purchase Contracts that are not
issued under the Indentures.
B-2
by an entity affiliated with the Company in the case of Series H Units), a
basket of such securities, an index or indices of such securities or any
combination of the above, (b) currencies or (c) commodities or (iv) any
combination thereof. The applicable Pricing Supplement will specify whether or
not any Notes, Warrants and Purchase Contracts comprised by a Unit may or may
not be separated from the Unit. Warrants issued as part of a Unit will be issued
pursuant to the Warrant Agreement dated as of November 1, 2004, between the
Company and JPMorgan Chase Bank, as Warrant Agent (as may be amended from time
to time, the "Warrant Agreement"). Purchase Contracts, other than Pre-paid
Purchase Contracts, entered into by the Company and the holders thereof will be
governed by the Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use reasonable
efforts to solicit purchases of the Notes and the Units, and the administrative
procedures explained below will govern the issuance and settlement of any Notes
or Units sold through the Agent, as agent of the Company. The Agent, as
principal, may also purchase Notes or Units for its own account, and the Company
and the Agent will enter into a terms agreement (in the case of Notes, a "Notes
Terms Agreement" and, in the case of Units, a "Units Terms Agreement"), as
contemplated by the Distribution Agreement. The administrative procedures
explained below will govern the issuance and settlement of any Notes or Units
purchased by the Agent, as principal, unless otherwise specified in the
applicable Notes Terms Agreement or Units Terms Agreement.
JPMorgan Chase Bank ("JPMorgan Chase") has initially been appointed the
(i) Calculation Agent and Principal Paying Agent for the Senior Notes (and any
Cash-settled Pre-Paid Purchase Contracts), (ii) the Unit Agent for the Units and
Purchase Contracts (other than Cash-settled Pre-Paid Purchase Contracts), (iii)
the Warrant Agent for the Warrants and (iv) the Registrar for the Senior
Registered Notes, and will perform the duties specified herein. J.P. Morgan
Trust Company, National Association (acting through JPMorgan Chase at its
corporate trust office in London as its sub-agent) has initially been appointed
the (x) Calculation Agent and Principal Paying Agent for the Subordinated Notes
and (y) the Registrar for the Subordinated Registered Notes, and will perform
the duties specified herein. As used herein, the term "Principal Paying Agent"
shall mean (i) JPMorgan Chase acting through its London office in connection
with the authentication and delivery of the Senior Notes, and (ii) J.P. Morgan
Trust Company, National Association (acting through JPMorgan Chase at its
corporate trust office in London as its sub-agent) in connection with the
authentication and delivery of the Subordinated Notes, in each case whether
issued alone or as part of a Unit, (and any Cash-settled Pre-Paid Purchase
Contracts) pursuant to the terms of the Indentures, and the term "Unit Agent"
shall mean JPMorgan Chase acting through its London office in connection with
the completion and delivery of the Units (including, as applicable,
countersigning and delivering any Warrants,
B-3
as Warrant Agent, and countersigning, executing and delivering any Purchase
Contracts (other than Cash-settled Pre-Paid Purchase Contracts), as Unit Agent,
includable in such Unit), pursuant to the terms of the Unit Agreements. "Warrant
Agent" shall mean JPMorgan Chase acting through its London office. The Series G
Notes are intended to be, and the Series G Units, in certain circumstances
described in the Prospectus Supplement (as such term is defined in the
Distribution Agreement), may be, admitted to the Official List of the Financial
Services Authority (the "UK Listing Authority") in its capacity as competent
authority for the purposes of Part VI of the Financial Services and Markets Act
2000 (the "FSMA"), and to trading on the London Stock Exchange plc (the "London
Stock Exchange"). Series H Notes and the Series H Units will not be listed on
any stock exchange. The Company has appointed Morgan Stanley & Co. International
Limited as the authorized adviser for purposes of applications to admit the
Series G Notes and the Series G Units, if it is determined that Series G Units
are to be so admitted, to the Official List of the UK Listing Authority and to
trading on the London Stock Exchange.
Each Bearer Note and each Bearer Unit (including each security
comprised by such Bearer Unit) initially will be represented by, in the case of
a Bearer Note, a Temporary Global Note and, in the case of a Bearer Unit, a
Temporary Global Unit, each of which will be delivered to a common depositary
located outside the United States (the "Depositary") for Euroclear Bank
S.A./N.V., as operator of the Euroclear System (the "Euroclear Operator"),
Clearstream Banking, societe anonyme ("Clearstream"), and/or any other relevant
clearing system (including Euroclear France). Such Temporary Global Note and
Temporary Global Unit will subsequently be represented by, in the case of the
Temporary Global Note, a Permanent Global Note and, in the case of the Temporary
Global Unit, a Permanent Global Unit. Upon the first request by any beneficial
owner to exchange any interest in a Permanent Global Note to a definitive Bearer
Note, or if any Note represented by such Permanent Global Note is accelerated
following an event of default with respect to such Note or if either the
Euroclear Operator, Clearstream or any other relevant clearing system is closed
for business for a continuous period of fourteen days (other than by reason of
public holidays) or announces an intention to cease business permanently or in
fact does so, then all (and not less than all) interests in such Permanent
Global Note shall be exchanged for definitive Bearer Notes; provided that, if
the applicable Pricing Supplement so specifies, nothing herein shall prevent the
further exchange of definitive Bearer Notes for Registered Notes. Upon the first
request by any beneficial owner to exchange any interest in a Permanent Global
Unit to a definitive Bearer Unit, or if any Note comprised by such Permanent
Global Note is accelerated following an event of default with respect to such
Note or if either the Euroclear Operator, Clearstream or any other relevant
clearing system is closed for business for a continuous period of fourteen days
(other than by reason of public holidays) or announces an intention to cease
business
B-4
permanently or in fact does so, then all (and not less than all) interests in
such Permanent Global Unit shall be exchanged for definitive Bearer Units;
provided that, if the applicable Pricing Supplement so specifies, nothing herein
shall prevent the further exchange of definitive Bearer Units for Registered
Units.
Unless otherwise defined herein, terms defined in the Indentures, the
Unit Agreement, the Unit Agreement Without Holders' Obligations, the Warrant
Agreement, the Notes, the Units, the Warrants, the Purchase Contracts or any
Prospectus Supplement relating to the Notes and Units shall be used herein as
therein defined.
The Company will advise the Agent in writing of the employees of the
Company with whom the Agent is to communicate regarding offers to purchase Notes
and Units and the related settlement details.
B-5
ADMINISTRATIVE PROCEDURES FOR
BEARER NOTES, REGISTERED NOTES,
BEARER UNITS AND REGISTERED UNITS
Issuance: Bearer Notes. Each Bearer Note, whether issued
alone or as part of a Unit, will be dated as of
its Original Issue Date. Each Bearer Note will
bear an Original Issue Date, which will be (i)
with respect to a Temporary Global Note (or any
portion thereof), the date of its original
issue as specified in such Temporary Global
Note or (ii) with respect to any Permanent
Global Note or any definitive Bearer Note (or
any portion thereof) issued subsequently upon
transfer or exchange of a Bearer Note or in
lieu of a destroyed, lost or stolen Bearer Note
(a "Replacement Bearer Note"), the Original
Issue Date of the predecessor Bearer Note,
regardless of the date of authentication of
such subsequently issued Bearer Note.
Registered Notes. Each Registered Note, whether
issued alone or as part of a Unit, will be
dated as of the date of its authentication by
JPMorgan Chase. Each Registered Note will also
bear an Original Issue Date, which will be (i)
with respect to an original Registered Note (an
"Original Registered Note") (or any portion
thereof), its original issuance date (which
will be the settlement date) and (ii) with
respect to any Registered Note (or portion
thereof) issued subsequently upon transfer or
exchange of a Registered Note or in lieu of a
destroyed, lost or stolen Registered Note or
upon exchange of a Bearer Note (a "Replacement
Registered Note"), the original issuance date
of the predecessor Registered Note or Bearer
Note, as the case may be, regardless of the
date of authentication of such subsequently
issued
B-6
Registered Note.
Bearer Units. Each Bearer Unit (whether
in temporary, permanent or definitive form)
will be deemed to be dated as of the
Original Issue Date of the Bearer Note
comprised by such Unit or, if there is no
such underlying Bearer Note, the date of the
other securities comprised thereby in
accordance with the procedures described
above.
Registered Units. Each Registered Unit will be
deemed to be dated as of the Original Issue
Date of the Registered Note comprised by such
Unit or, if there is no such underlying
Registered Note, as of the date of the other
securities comprised thereby in accordance with
the procedures described above.
Denominations: Bearer Notes. Unless otherwise specified in the
applicable Pricing Supplement, Bearer Notes,
whether issued alone or as part of a Unit, will
be issued only in denominations of $1,000 (or,
in the case of Bearer Notes not denominated in
U.S. dollars, the equivalent thereof in the
Specified Currency, rounded to the nearest
1,000 units of the Specified Currency) or any
amount in excess thereof which is an integral
multiple of $1,000 (or, in the case of Bearer
Notes not denominated in U.S. dollars, 1,000
units of the Specified Currency).
Registered Notes. Unless otherwise specified in
the applicable Pricing Supplement, Registered
Notes will be issued, either alone or as part
of a Unit, only in denominations of $1,000 (or,
in the case of Registered Notes not denominated
in U.S. dollars, the equivalent thereof in the
Specified Currency, rounded to the nearest
1,000 units of the Specified Currency) or
B-7
any amount in excess thereof which is an
integral multiple of $1,000 (or, in the case of
Registered Notes not denominated in U.S.
dollars, 1,000 units of the Specified
Currency).
Bearer Units. Unless otherwise specified in the
applicable Pricing Supplement, Bearer Units
will be issued only in denominations of a
single Unit and any integral multiple thereof,
with face amounts in denominations as indicated
in the applicable Pricing Supplement, generally
corresponding to the denominations of any Notes
or other securities comprised by such Units.
Registered Units. Unless otherwise specified in
the applicable Pricing Supplement, Registered
Units will be issued only in denominations of a
single Unit and any integral multiple thereof,
with face amounts in denominations as indicated
in the applicable Pricing Supplement, generally
corresponding to the denominations of any Notes
or other securities comprised by such Units.
Global Notes and
Definitive Bearer
and Registered Notes: Until Final Certification (as defined below)
with respect to an issuance of Bearer Notes
has occurred, such Notes, together with all
other Bearer Notes that have the same terms
(other than their respective principal
amounts) (all such Notes herein referred to
collectively as a "Note Tranche"), will be
represented by a single Temporary Global
Note in bearer form without interest
coupons. The Company shall execute, and upon
Company instructions the Principal Paying
Agent shall complete and authenticate, such
Temporary Global Note upon the same
conditions and in substantially the same
manner, and with the
B-8
same effect, as an individual definitive
Bearer Note. On or prior to the settlement
date (which will normally be the Original
Issue Date) with respect to such Notes, the
Principal Paying Agent shall deposit the
Temporary Global Note with the Depositary in
the manner specified below under "Settlement
Procedures; Bearer Notes and Bearer Units".
The interest of each beneficial owner of
Notes represented by such Temporary Global
Note will be credited to the appropriate
account with the Euroclear Operator,
Clearstream or any other relevant clearing
system.
On or after the date (the "Exchange Date") that
is the 40th day following the date on which the
Company receives the proceeds of the sale of a
Temporary Global Note (the "Closing Date"), or
if such Note is held by the Agent as part of an
unsold allotment or subscription more than 40
days after the Closing Date for such Note, on
or after the day after the date such Note is
sold by the Agent, all as notified by the Agent
in writing to JPMorgan Chase, the interest of
the beneficial owners of the Notes represented
by the Temporary Global Note shall be canceled
and such interests shall thereafter be
represented by a Permanent Global Note in
bearer form without interest coupons held in
London by the Depositary; provided that Final
Certification (as described below) has
occurred. The interest of each beneficial owner
of Notes represented by such Permanent Global
Note will be credited to the appropriate
account with the Euroclear Operator,
Clearstream or any other relevant clearing
system.
If the beneficial owner of an interest in a
Permanent Global Note requests, at any time,
upon 30 days' written notice to the
Principal Paying Agent given by such
B-9
beneficial owner through either the
Euroclear Operator, Clearstream or any other
relevant clearing system, as the case may
be, or if any Note represented by such
Permanent Global Note is accelerated
following an event of default with respect
to such Note or if either the Euroclear
Operator, Clearstream or any other relevant
clearing system is closed for business for a
continuous period of fourteen days (other
than by reason of public holidays) or
announces an intention to cease business
permanently or in fact does so, such
Permanent Global Note shall be exchanged for
one or more definitive Bearer Notes with
coupons attached, if appropriate, or, if the
applicable Pricing Supplement so specifies,
one or more Registered Notes in authorized
denominations equal in aggregate principal
amount to such beneficial interest; provided
that any such exchange of an interest in a
Permanent Global Note for a definitive
Bearer Note shall result in the exchange of
all (and not less than all) interests in
such Permanent Global Note for definitive
Bearer Notes; provided further, that, if the
applicable Pricing Supplement so specifies,
nothing herein shall prevent the further
exchange of definitive Bearer Notes for
Registered Notes. To effect such exchange,
the interest of such beneficial owner in
such Permanent Global Note shall be canceled
and one or more definitive Bearer Notes or
Registered Notes, as the case may be, shall
be issued to such beneficial owner, through
the Euroclear Operator, Clearstream or any
other relevant clearing system, as the case
may be.
In all events, Bearer Notes and coupons will be
delivered by the Principal Paying Agent only
outside the United States.
B-10
Global Units and
Definitive Bearer
and Registered Units: Until Final Certification (as defined below)
has occurred with respect to an issuance of
Bearer Notes included in an issuance of
Bearer Units, such Units, together with all
other Bearer Units that include securities
that have the same terms (other than their
respective number and face amounts) (all
such Units herein referred to collectively
as a "Unit Tranche"), will be represented by
a single Temporary Global Unit in bearer
form (which form shall include the
corresponding temporary global forms of each
security comprised by such Unit). The
Company shall execute, and upon Company
instructions, JPMorgan Chase, as Unit Agent,
shall complete, such Temporary Global Unit
(including, as applicable, authenticating
any Temporary Global Note or Cash-settled
Pre-paid Purchase Contracts, as Principal
Paying Agent, countersigning and delivering
any Warrants, as Warrant Agent, and
countersigning, executing and delivering any
Purchase Contracts (other than Cash-settled
Pre-paid Purchase Contracts), as Unit Agent,
includable in such Unit) upon the same
conditions and in substantially the same
manner, and with the same effect, as an
individual definitive Bearer Unit. On or
prior to the settlement date (which will
normally be the Original Issue Date of the
Note comprised by a Unit or, if there is no
such underlying Note, the date of the other
securities comprised thereby) with respect
to such Units, the Unit Agent shall deposit
the Temporary Global Unit (with the
corresponding temporary global forms of each
security comprised by such Unit) with the
Depositary in the manner specified below
under "Settlement Procedures; Bearer Notes
and Bearer Units." The interest of each
beneficial owner of Units represented by
such Temporary Global
B-11
Unit will be credited to the appropriate
account with the Euroclear Operator,
Clearstream or any other relevant clearing
system.
On or after the Exchange Date of any
Temporary Global Note comprised by a
Temporary Global Unit, the interest of the
beneficial owners of the Units represented
by the Temporary Global Unit shall be
canceled and such interests shall thereafter
be represented by a Permanent Global Unit in
bearer form (with the corresponding
permanent global forms of each security
comprised by such Unit) held in London by
the Depositary; provided that Final
Certification (as described below) of any
Notes comprised by such Unit has occurred.
The interest of each beneficial owner of
Units represented by such Permanent Global
Unit will be credited to the appropriate
account with the Euroclear Operator,
Clearstream or any other relevant clearing
system.
If the beneficial owner of an interest in a
Permanent Global Unit requests, at any time,
upon 30 days' written notice to the Unit
Agent given by such beneficial owner through
either the Euroclear Operator, Clearstream
or any other relevant clearing system, as
the case may be, or if any Note comprised by
such Permanent Global Note is accelerated
following an event of default with respect
to such Note or if either the Euroclear
Operator, Clearstream or any other relevant
clearing system is closed for business for a
continuous period of fourteen days (other
than by reason of public holidays) or
announces an intention to cease business
permanently or in fact does so, such
Permanent Global Unit shall be exchanged for
one or more definitive Bearer Units or, if
the applicable Pricing Supplement so
specifies, one or more
B-12
Registered Units in authorized denominations
equal in aggregate number and aggregate face
amount to such beneficial interest; provided
that any such exchange in any interest in a
Permanent Global Unit for a definitive
Bearer Unit shall result in the exchange of
all (and not less than all) interests in
such Permanent Global Unit for definitive
Bearer Units; provided further, that, if the
applicable Pricing Supplement so specifies,
nothing herein shall prevent the further
exchange of definitive Bearer Units for
Registered Units. To effect such exchange,
the interest of such beneficial owner in
such Permanent Global Unit shall be canceled
and one or more definitive Bearer Units or
Registered Units, as the case may be, shall
be issued to such beneficial owner, through
the Euroclear Operator, Clearstream or any
other relevant clearing system, as the case
may be.
In all events, Bearer Units will be delivered
by the Unit Agent only outside the United
States.
Notes or Units Purchased
by U.S. Persons: All Notes (whether issued alone or as part of a
Unit) purchased in connection with their
original issuance by or on behalf of a United
States person (as defined in the Distribution
Agreement) (other than a branch of a United
States financial institution (as defined in the
applicable United States Treasury Regulation)
located outside the United States purchasing
for its own account or for resale (a
"Qualifying Foreign Branch") or other permitted
U.S. purchasers as provided in the Prospectus
Supplement that satisfies the conditions for
receiving Bearer Notes as described under
"Final Certification" below) will be issued
only as Registered Notes and any Units
comprising such Notes will be issued
B-13
only as Registered Units.
Final Certification: Final Certification with respect to a
Temporary Global Note (whether issued alone
or as part of a Unit) shall mean the
delivery by the Euroclear Operator,
Clearstream or any other relevant clearing
system, as the case may be, to the Principal
Paying Agent of a signed certificate (each a
"Clearance System Certificate") in the form
set forth in Appendix 1 hereto with respect
to the Notes being exchanged, dated no
earlier than the Exchange Date for such
Notes, to the effect that the Euroclear
Operator, Clearstream or any other relevant
clearing system, as the case may be, has
received certificates in writing, by tested
telex or by electronic transmission from the
account holders appearing on its records as
entitled to such Notes ("Ownership
Certificates") in the form set forth in
Appendix 2 hereto with respect to each of
such Notes, which Ownership Certificates
shall be dated no earlier than ten days
before the Exchange Date.
Preparation of
Pricing Supplement: If any offer to purchase a Program Security is
accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of
such Program Security, will arrange to file an
electronic format document, in the manner
prescribed by the EDGAR Filer Manual, of such
Pricing Supplement with the Commission in
accordance with the applicable paragraph of
Rule 424(b) under the Securities Act and will,
as soon as possible and in any event not later
than the date on which such Pricing Supplement
is filed with the Commission, deliver the
number of copies of such Pricing Supplement to
the Agent as the Agent shall request. The Agent
will cause such Pricing
B-14
Supplement to be delivered to the purchaser of
the Program Security.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for (i) the
delivery of an authenticated Temporary
Global Note or a Temporary Global Unit
(including each security comprised by such
Unit) to the Depositary in the manner
described in "Settlement Procedures; Bearer
Notes and Bearer Units" below or (ii) the
delivery of an authenticated Registered Note
or a Registered Unit (including each
security comprised by such Unit) to the
Agent shall constitute "settlement" with
respect to such Note or Unit. All offers
accepted by the Company will be settled on
the fifth Business Day next succeeding the
date of acceptance pursuant to the timetable
for settlement set forth below, unless the
Company and the purchaser agree to
settlement on another day, which shall be no
earlier than the next Business Day.
Settlement
Procedures;
Bearer Notes
and Bearer Units: Procedures with regard to each Bearer Note or
Bearer Unit sold by the Company to or through
the Agent (unless otherwise specified pursuant
to a Notes Terms Agreement or a Units Terms
Agreement) shall be as follows:
A. In the case of a Bearer Note (whether
issued alone or as part of a Unit), the
B-15
Agent will advise the Company by telephone
that such Note is initially a Bearer Note
and of the following settlement
information:
1. Principal amount.
2. Maturity Date.
3. Interest Payment Date(s).
4. In the case of a Fixed Rate Bearer
Note, the Interest Rate and whether
such Note is an Amortizing Note, and,
if so, the amortization schedule, or,
in the case of a Floating Rate Bearer
Note, the Initial Interest Rate (if
known at such time), Interest Payment
Period, Calculation Agent, Base Rate,
Index Maturity, Index Currency,
Interest Reset Period, Initial Interest
Reset Date, Interest Reset Dates,
Spread or Spread Multiplier (if any),
Minimum Interest Rate (if any), Maximum
Interest Rate (if any) and the
Alternate Rate Event Spread (if any).
5. Redemption or repayment provisions, if
any.
6. Ranking.
7. Settlement date and time (Original
Issue Date).
8. Interest Accrual Date.
9. Price.
10. Agent's commission, if any, determined
as provided in the
B-16
Distribution Agreement.
11. Specified Currency.
12. Whether the Note is an Original Issue
Discount Note (an "OID Note"), and if
it is an OID Note, the applicability of
Modified Payment upon Acceleration
(and, if so, the Issue Price).
13. Agent's account number at the Euroclear
Operator, Clearstream or any other
relevant clearing system.
14. Whether such Note is a Series G Note or
a Series H Note.
15. Any other applicable provisions.
B. In the case of a Bearer Unit, the Agent
will advise the Company by telephone that
such Unit is initially a Bearer Unit, of
the information set forth in Settlement
Procedures; Bearer Notes and Bearer Units
"A" above with respect to Bearer Notes that
constitute a part of such Bearer Unit and
of the following information:
1. Settlement date and time.
2. Face Amount.
3. Agent's commission, if any, determined
as provided in the Distribution
Agreement.
4. Designation of the Securities comprised
by such Units:
B-17
a. Notes (See "Settlement Procedures;
Bearer Notes and Bearer Units"
"A");
b. Warrants, if any; and
c. Purchase Contracts, if any.
5. Whether, and the terms under which, the
Securities comprised by such Unit will
be separately tradeable.
6. Any other provisions applicable to the
Unit (other than those provisions
applicable to the securities comprised
by such Unit).
7. If the Bearer Unit comprises Bearer
Warrants:
a. Designation of the Series of
Warrants: [Call] [Put] Warrants;
b. Warrant Property;
c. Aggregate Number of Warrants;
d. Price to Public;
e. Warrant Exercise Price;
f. Dates upon which Warrants may be
exercised;
g. Expiration Date;
B-18
h. Form;
i. Currency in which exercise payments
shall be made;
j. Minimum number of Warrants
exercisable by any holder on any
day;
k. Maximum number of Warrants
exercisable on any day: [In the
aggregate] [By any beneficial
owner];
l. Formula for determining Cash
Settlement Value;
m. Exchange Rate (or method of
calculation);
n. Whether the Company or the holder
is the writer of the Warrant; and
o. Any other applicable provisions.
8. If the Bearer Unit comprises Bearer
Purchase Contracts:
a. Purchase Contract Property;
b. Price to Public;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
B-19
f. Method of Computing Settlement
Amount;
g. Currency of Settlement Payment;
h. Authorized Number of Purchase
Contracts;
i. [Purchase] [Sale] Price of Purchase
Contract Property;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions; and
j. Any other applicable provisions.
C. The Company will advise JPMorgan Chase as
the Principal Paying Agent for the Notes or
as the Unit Agent for the Units by
telephone or electronic transmission
(confirmed in writing at any time on the
same date) of the information set forth in
"Settlement Procedures; Bearer Notes and
Bearer Units" "A" or "B", above, as
applicable, and shall give the Principal
Paying Agent or the Unit Agent, as the case
may be, written instructions (substantially
in the form set out in Appendix 3 and
Appendix 4, as applicable) to prepare a
Temporary Global Note for each Note Tranche
or a Temporary Global Unit (with the
corresponding temporary global forms of
each security comprised by such Unit) for
B-20
each Unit Tranche, as the case may be,
which the Company has agreed to sell. The
Company will send a copy of such
instructions to the Agent and the relevant
Trustee, such instructions to contain a
representation as to the aggregate
principal amount of Program Securities
permitted to be issued hereunder after such
issuance.
The Principal Paying Agent or the Unit
Agent shall telephone each of the Euroclear
Operator, Clearstream or any other relevant
clearing system with a request for a
security code for each Note Tranche or Unit
Tranche (and, if applicable, a security
code for each security comprised by the
Units of such Unit Tranche) agreed to be
issued and shall notify the Company and the
Agent of such security code or codes as
soon as practicable.
D. In accordance with instructions received
from the Company, (i) the Principal Paying
Agent shall authenticate and deliver a
Temporary Global Note or Cash-settled
Pre-paid Purchase Contract for each Note
Tranche or Unit Tranche, as applicable,
which the Company has agreed to sell and
(ii) the Unit Agent shall prepare a
Temporary Global Unit for each Unit Tranche
which the Company has agreed to sell
(including, as applicable, by
countersigning and delivering any Warrants
includable in such Unit, by countersigning,
executing and delivering any Purchase
Contracts (other than Cash-settled Pre-Paid
Purchase Contracts) includable in such Unit
and by obtaining from the
B-21
Principal Paying Agent any Notes or
Cash-settled Pre-paid Purchase Contracts to
be included in such Units, authenticated in
accordance with clause (i) above). The
settlement of each of the Note Tranche and
the Unit Tranche is to occur on the
relevant settlement date. All such
Temporary Global Notes and all such
Temporary Global Units (including all of
the securities included in such Units) will
then be delivered to the Depositary. The
Principal Paying Agent or the Unit Agent,
as the case may be, will also give
instructions to the Euroclear Operator,
Clearstream or any other relevant clearing
system to credit the Notes or Units
represented by such Temporary Global Note
or Temporary Global Unit delivered to such
Depositary to, in the case of the Notes,
the Principal Paying Agent's distribution
account and, in the case of the Units, the
Unit Agent's distribution account, at the
Euroclear Operator, Clearstream or any
other relevant clearing system. At
settlement of any Note Tranche, the
Principal Paying Agent will instruct the
Euroclear Operator, Clearstream or any
other relevant clearing system to debit, on
the settlement date, from the distribution
account of the Principal Paying Agent the
principal amount of Notes of each Note
Tranche, with respect to which the Agent
has solicited an offer to purchase and to
credit, on the settlement date, such
principal amount to the account of the
Agent with the Euroclear Operator,
Clearstream or any other relevant clearing
system against payment of
B-22
the purchase payment price of such Notes.
At settlement of any Unit Tranche, the Unit
Agent will instruct the Euroclear Operator,
Clearstream or any other relevant clearing
system to debit, on the settlement date,
from the distribution account of the Unit
Agent the number and face amount of Units
of each Unit Tranche, with respect to which
the Agent has solicited an offer to
purchase and to credit, on the settlement
date, such number and face amount to the
account of the Agent with the Euroclear
Operator, Clearstream or any other relevant
clearing system against payment of the
purchase payment price of such Units. In
the case of the Notes and the Units, the
Agent shall give corresponding instructions
to the Euroclear Operator, Clearstream or
any other relevant clearing system.
E. The Euroclear Operator, Clearstream and any
other relevant clearing system shall debit
and credit accounts in accordance with
instructions received from the Principal
Paying Agent and the Agent, in the case of
Notes and the Unit Agent and the Agent, in
the case of Units.
Each of the Principal Paying Agent and the
Unit Agent shall pay the Company the
aggregate net proceeds received by it in
immediately available funds via a transfer
of funds to the U.S. dollar account of the
Company with a bank in New York City (or,
with respect to Notes and Units payable in
a Specified Currency other than U.S.
dollars, to an account maintained at a bank
B-23
selected by the Company, which bank shall
be located outside the United Kingdom in
the case of Notes and Units payable in a
Specified Currency other than pounds
sterling that mature not later than five
years from and including the date of issue
thereof) designed by the Company in
writing.
Settlement Procedures For sales by the Company of Bearer Notes or of
Timetable; Bearer Notes Bearer Units to or through the Agent,
and Bearer Units: "Settlement Procedures; Bearer Notes and Bearer
Units" "A" through "E" above shall be completed
on or before the respective times set forth
below:
Settlement Procedure;
Bearer Notes
and Bearer Units Time
--------------------- -----------------------
A 12:00 P.M. (NYC time) three days before
settlement date
B 12:00 P.M. (NYC time) three days before
settlement date
C 9:00 A.M. (London time) two days before
settlement date
D 3:45 P.M. (London time) one day before
settlement date
E 5:00 P.M. (NYC time) on settlement date
Settlement Procedures; Settlement Procedures with regard to each
Registered Notes and Registered Note and Registered Unit sold by
Registered Units: the Company to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement) shall be
as follows:
AA. In the case of a Registered Note
B-24
(whether issued alone or as part of a
Unit), the Agent will advise the Company by
telephone that such Note is a Registered
Note and of the following settlement
information:
1. Name in which such Note is to be
registered ("Registered Note Owner").
2. Address of the Registered Note Owner
and address for payment of principal
and interest.
3. Taxpayer identification number of the
Registered Note Owner (if available).
4. Principal amount.
5. Maturity Date.
6. Interest Payment Date(s)
7. In the case of a Fixed Rate Registered
Note, the Interest Rate, whether such
Note is an Amortizing Note and, if so,
the amortization schedule, or, in the
case of a Floating Rate Registered
Note, the Initial Interest Rate (if
known at such time), Interest Payment
Dates, Interest Payment Period,
Calculation Agent, Base Rate, Index
Maturity, Index Currency, Interest
Reset Period, Initial Interest Reset
Date, Interest Reset Dates, Spread or
Spread Multiplier (if any),
B-25
Minimum Interest Rate (if any),
Maximum Interest Rate (if any) and the
Alternate Rate Event Spread (if any).
8. Redemption or repayment provisions (if
any).
9. Ranking.
10. Settlement date and time (Original
Issue Date).
11. Interest Accrual Date.
12. Price.
13. Agent's commission (if any) determined
as provided in the Distribution
Agreement.
14. Denominations.
15. Specified Currency.
16. Whether the Note is an OID Note, and if
it is an OID Note, and the
applicability of Modified Payment upon
Acceleration (and if so, the Issue
Price).
17. Whether such Note is a Series G Note or
a Series H Note.
18. Any other applicable provisions.
BB. In the case of a Registered Unit, the Agent
will advise the Company by telephone that
such Unit is a Registered Unit, of the
information set forth in "Settlement
B-26
Procedures; Registered Notes and Registered
Units" "A" above with respect to any
Registered Notes that constitute a part of
such Registered Unit and of the following
information:
1. Name in which such Unit is to be
registered ("Registered Unit Owner").
2. Address of the Registered Unit Owner.
3. Taxpayer identification number of the
Registered Unit Owner (if available).
4. Denominations.
5. Settlement date and time.
6. Number of Units (and Face Amount).
7. Agent's commission, if any, determined
as provided in the Distribution
Agreement.
8. Designation of the Securities comprised
by such Units:
a. Notes, if any (See "Settlement
Procedures; Registered Notes and
Registered Units" "A");
b. Warrants, if any; and
c. Purchase Contracts, if any.
B-27
9. Whether, and the terms under which, the
Securities comprised by such Unit will
be separately tradeable.
10. Any other provisions applicable to the
Unit (other than those provisions
applicable to the securities comprised
by such Unit).
11. If the Registered Unit comprises
Registered Warrants:
a. Designation of the Series of
Warrants: [Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of Warrants;
d. Price to Public;
e. Warrant Exercise Price;
f. Dates upon which Warrants may be
exercised;
g. Expiration Date;
h. Currency in which exercise payments
shall be made;
i. Minimum number of Warrants
exercisable by any holder on any
day;
j. Maximum number of Warrants
exercisable
B-28
on any day: [In the aggregate] [By
any beneficial owner];
k. Formula for determining Cash
Settlement Value;
l. Exchange Rate (or method of
calculation);
m. Whether the Company or the holder
is the writer of the warrant; and
n. Any other applicable provisions.
12. If the Registered Unit comprises
Registered Purchase Contracts:
a. Purchase Contract Property;
b. Price to Public;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing Settlement
Amount;
g. Currency of Settlement Payment;
h. Authorized Number of Purchase
Contracts;
B-29
i. [Purchase] [Sale] Price of Purchase
Contract Property;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions; and
j. Any other applicable provisions.
CC. The Company will advise JPMorgan Chase as
Principal Paying Agent for the Notes or as
Unit Agent for the Units, by telephone or
electronic transmission (confirmed in
writing at any time on the same date) of
the information set forth in "Settlement
Procedures; Registered Notes and Registered
Units" "AA" and "BB" above, as applicable,
such advice to contain a representation as
to the aggregate principal amount of
Program Securities permitted to be issued
hereunder after such issuance.
DD. The Company will have delivered to JPMorgan
Chase as Principal Paying Agent for the
Notes, or as Unit Agent for the Units, a
pre-printed four-ply packet for such Note
or such Unit, as the case may be, which
packet will contain the following documents
in forms that have been approved by the
B-30
Company, the Agent and JPMorgan Chase, as
Principal Paying Agent for the Notes, or as
Unit Agent for the Units:
1. Note or Unit, as the case may be, with
customer confirmation.
2. Stub One - For JPMorgan Chase.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
EE. JPMorgan Chase will (i) authenticate and
deliver any Note (whether issued alone or
as part of a Unit) or Cash-settled Pre-Paid
Purchase Contract through the Principal
Paying Agent, if necessary, with the
confirmation and Stubs One and Two to the
Agent, and (ii) complete and deliver any
Unit (including by countersigning and
delivering any Warrant includable in such
Unit, by countersigning, executing and
delivering any Purchase Contract (other
than Cash-settled Pre-paid Purchase
Contracts) includable in such Unit and by
obtaining from the Principal Paying Agent
any Notes or Cash-settled Pre-paid Purchase
Contracts to be included in such Units,
authenticated in accordance with clause (i)
above) with the confirmation and Stubs One
and Two to the Agent. The Agent will
acknowledge receipt of the Note or the
Unit, as the case may be, by stamping or
otherwise marking Stub One and returning it
B-31
to JPMorgan Chase, through the Principal
Paying Agent, in the case of the Notes, if
necessary. Such delivery will be made only
against such acknowledgment of receipt and
evidence that instructions have been given
by the Agent, with respect to Program
Securities denominated in U.S. dollars, for
payment to the account of the Company at
JPMorgan Chase, New York, New York (or,
with respect to Program Securities payable
in a Specified Currency other than U.S.
dollars, to an account maintained at a bank
selected by the Company, which bank shall
be located outside the United Kingdom in
the case of Program Securities payable in a
Specified Currency other than pounds
sterling that mature not later than five
years from and including the date of issue
thereof), in immediately available funds,
of an amount equal to the purchase price of
such Program Securities less the Agent's
commission (if any). In the event that the
instructions given by the Agent for payment
to the account of the Company are revoked,
the Company will as promptly as possible
wire transfer to the account of the Agent
an amount of immediately available funds
equal to the amount of such payment made.
The Principal Paying Agent and the Unit
Agent shall pay the Company the aggregate
net proceeds received by it in immediately
available funds via a transfer of funds to
the U.S. dollar account of the Company with
JPMorgan Chase in New York City
B-32
(or, with respect to Program Securities
payable in a Specified Currency other than
U.S. dollars, to an account maintained at a
bank selected by the Company which bank
shall be located outside the United Kingdom
in the case of Program Securities payable
in a Specified Currency other than pounds
sterling that mature not later than five
years including the date of issue thereof)
designated by the Company in writing.
FF. Unless the Agent purchased such Program
Securities as principal, the Agent will
deliver (with confirmation) such Program
Securities to the customer against payment
in immediately available funds. The Agent
will obtain the acknowledgment of receipt
of such Program Securities by retaining
Stub Two.
GG. In the case of all Program Securities,
JPMorgan Chase will send Stub Three to the
Company by first-class mail. Periodically,
JPMorgan Chase will also send to the
Company a statement setting forth, in the
case of the Notes, the principal amount of
the Notes outstanding as of that date under
each Indenture and, in the case of the
Units, the aggregate face amount of the
Units outstanding under the Unit Agreement
and, in each case, setting forth a brief
description of any sales of which the
Company has advised JPMorgan Chase that
have not yet been settled.
B-33
Settlement Procedures For sales by the Company of Registered Notes or
Timetable; Registered Notes Registered Units to or through the Agent,
and Registered Units: "Settlement Procedures; Registered Notes and
Registered Units" "AA" through "GG" set forth
above shall be completed on or before the
respective times (London time) set forth below:
Settlement
Procedure;
Registered Notes
and Registered Units Time
-------------------- ----------------------
AA 2:00 P.M. on second day before settlement
date
BB 2:00 P.M. on second day before settlement
date
CC 3:00 P.M. on second day before settlement
date
DD-EE 2:15 P.M. on settlement date
FF 3:00 P.M. on settlement date
GG 5:00 P.M. on settlement date
B-34
Failure to Settle: Bearer Notes and Bearer Units. If the Agent
shall have advanced its own funds for payment
against subsequent receipt of funds from the
purchaser and if a purchaser shall fail to make
payment for a Note or a Unit, the Agent will
promptly notify, in the case of a Note, the
Company, the Principal Paying Agent, the
Depositary and the Euroclear Operator,
Clearstream and any other relevant clearing
system, and, in the case of the Unit, the
Company, the Unit Agent, the Depositary, and
the Euroclear Operator, Clearstream and any
other relevant clearing system, in each case by
telephone, promptly confirmed in writing (but
no later than the next Business Day). In such
event, the Company shall promptly instruct the
Principal Paying Agent, in the case of the
Note, and the Unit Agent, in the case of the
Unit, to cancel the purchaser's interest in the
appropriate Temporary Global Note representing
such Note or the appropriate Temporary Global
Unit representing such Unit. Upon (i)
confirmation from the Principal Paying Agent or
the Unit Agent in writing (which may be given
by telex or telecopy) that the Principal Paying
Agent or the Unit Agent has canceled such
purchaser's interest in such Temporary Global
Note or Temporary Global Unit, as the case may
be, and (ii) confirmation from the Agent in
writing (which may be given by telex or
telecopy) that the Agent has not received
payment from the purchaser for the Note or the
Unit, the Company will promptly pay to the
Agent an amount in immediately available funds
equal to the amount previously paid by the
Agent in respect of such Bearer Note or Bearer
Unit. Such payment will be made on the
settlement date, if possible, and in any event
not later than 12 noon (New York City time) on
the Business Day following the settlement date.
The
B-35
Principal Paying Agent or the Unit Agent, as
the case may be, and the Depositary will make
or cause to be made such revisions to such
Temporary Global Note or Temporary Global Unit
as are necessary to reflect the cancellation of
such portion of such Temporary Global Note or
Temporary Global Unit.
If a purchaser shall fail to make payment for
the Note or Unit for any reason other than a
default by the Agent in the performance of its
obligations hereunder and under the
Distribution Agreement, then the Company will
reimburse the Agent on an equitable basis for
the Agent's loss of the use of funds during the
period when they were credited to the account
of the Company, the Principal Paying Agent or
the Unit Agent, as applicable.
Immediately upon such cancellation, the
Principal Paying Agent or the Unit Agent, as
the case may be, will make appropriate entries
in its records to reflect the fact that a
settlement did not occur with respect to such
Note or Unit.
Registered Notes and Registered Units. If a
purchaser fails to accept delivery of and make
payment for any Registered Note or Registered
Unit, the Agent will notify the Company and
JPMorgan Chase, as Registrar of the Registered
Notes or as Unit Agent, by telephone and return
such Note or Unit to JPMorgan Chase through the
Principal Paying Agent, in the case of the
Notes or the Unit Agent, in the case of the
Units, if necessary. Upon receipt of such
notice, the Company will immediately wire
transfer to the account of the Agent an amount
equal to the amount previously
B-36
credited to the Company's account in respect
of such Note or Unit. Such wire transfer
will be made on the settlement date, if
possible, and in any event not later than
the Business Day following the settlement
date. If the failure shall have occurred for
any reason other than a default by the Agent
in the performance of its obligations
hereunder and under the Distribution
Agreement, then the Company will reimburse
the Agent on an equitable basis for its loss
of the use of the funds during the period
when they were credited to the account of
the Company or JPMorgan Chase. Immediately
upon receipt of the Registered Note or
Registered Unit in respect of which such
failure occurred, JPMorgan Chase will mark
such Note or Unit "canceled," make
appropriate entries in JPMorgan Chase's
records and send such Note or Unit to the
Company.
Cancellation of Issuance: If any Program Securities of a particular
series in respect of which information has been
supplied under "Settlement Procedures" above is
not to be issued on a given issue date, the
Issuer shall promptly notify the Principal
Paying Agent and the Trustee and shall promptly
confirm such notification in writing. Upon
receipt of such notice, neither the Principal
Paying Agent nor the Trustee shall thereafter
issue or release the relevant Program
Securities but shall, if applicable, cancel
and, unless otherwise instructed by the Issuer
in writing, dispose of them in accordance with
their customary procedures.
Notice of Issuance to the The Sponsoring Member Firm will provide
UK Listing Authority and the information with respect to the issuance of
London Stock Exchange: each Series G Note and Series G Unit to the UK
Listing Authority and the London Stock Exchange
or any other stock exchange or quotation
system, as
B-37
appropriate, and will advise the Company in
writing as to the effectiveness of the
listing of such Series G Note and Series G
Unit by the close of business on the related
settlement date.
Listing: The Sponsoring Member Firm will, on a regular
basis, provide the UK Listing Authority and the
London Stock Exchange or any other stock
exchange or listing authority or quotation
system, as appropriate, with such information
regarding Series G Notes and Series G Units
issued and outstanding as such exchange or
listing authority may require.
B-38
APPENDIX 1
[FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR, CLEARSTREAM AND/OR ANY OTHER RELEVANT
CLEARING SYSTEM]
CERTIFICATE
------------------
Morgan Stanley
Notes, Series G/H
Represented by Temporary Global [Fixed/Floating] Rate
Senior Bearer Note No. __
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in Appendix 2 to Exhibit B to the Euro Distribution
Agreement relating to such Notes, as of the date hereof, __________ principal
amount of the above-captioned Securities (i) is owned by persons that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or other entity created or organized in or under the laws of the
United States or any political subdivision thereof, an estate the income of
which is subject to United States federal income taxation regardless of its
source or a trust if both (a) a court within the United States is able to
exercise primary supervision over the administration of the trust and (b) one or
more United States persons have the authority to control all substantial
decisions of the trust ("United States persons"), (ii) is owned by United States
persons that are (a) foreign branches of United States financial institutions
(as defined in the applicable U.S. Treasury Regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States persons who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
U.S. Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) is owned by United States or foreign financial institutions for
purposes of resale during the restricted period (as defined in the applicable
U.S. Treasury Regulations), and such United States or foreign financial
institutions described in clause (iii) above (whether or not also described in
clause (i) or (ii)) have certified
that they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions. Any such certification by electronic transmission satisfies the
requirements set forth in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(ii). We will retain all certifications from our Member
Organizations for the period specified in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(3)(i).
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, seeking to collect principal or interest with respect
to) any portion of the temporary global Security representing the
above-captioned Securities excepted in the above-referenced certificates of
Member Organizations and (ii) that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith (or, if relevant, with respect to which principal or
interest is being requested) are no longer true and cannot be relied upon as of
the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
Dated: ___________, 20__
[To be dated no earlier than [insert
date of Interest Payment Date prior
to Exchange Date] [insert date of
Redemption Date prior to
Exchange Date] [insert Exchange
Date]]
2
[EUROCLEAR BANK S.A./N.V., as
Operator of the Euroclear System]
[CLEARSTREAM BANKING,
SOCIETE ANONYME]
[OTHER]
By:
------------------------------------
Name:
Title:
3
APPENDIX 2
[FORM OF CERTIFICATE TO BE GIVEN BY
AN ACCOUNT HOLDER OF EUROCLEAR, CLEARSTREAM AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
-------------------------------
Morgan Stanley
Notes, Series G/H
Represented by Temporary Global [Fixed/Floating] Rate
Senior Bearer Note No. __
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or other entity created or organized in or
under the laws of the United States or any political subdivision thereof, an
estate the income of which is subject to United States Federal income taxation
regardless of its source, or a trust if both (a) a court within the United
States is able to exercise primary supervision over the administration of the
trust and (b) one or more United States persons have the authority to control
all substantial decisions of the trust ("United States persons"), (ii) is owned
by United States persons that are (a) foreign branches of United States
financial institutions (as defined in the applicable U.S. Treasury Regulations)
("financial institutions") purchasing for their own account or for resale, or
(b) United States persons who acquired the Securities through foreign branches
of United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution hereby agrees, on its own
behalf or through its agent, that you may advise the Issuer or the Issuer's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the U.S. Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in the applicable U.S. Treasury Regulations), and in addition if the owner of
the Securities is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)) such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Securities
held by you for our account in accordance with your Operating Procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to [U.S.$] _________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand exchange for and delivery of
definitive Securities (or, if relevant, exercise of any rights or collection of
any principal or interest) cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
2
Dated: ___________, 20__
[To be dated no earlier than the
10th day before [insert date of
Interest Payment Date prior to
Exchange Date] [insert date of
Redemption Date prior to
Exchange Date] [insert Exchange
Date]]
[NAME OF ACCOUNT HOLDER]
By:
------------------------------------
(Authorized Signatory)
Name:
Title:
3
APPENDIX 3
FORM OF COMPANY'S NOTICE TO PRINCIPAL PAYING AGENT
--------------------------------------------------
To:JPMorgan Chase Bank,
London Office
Attention:
_____________________
_____________________
and with a copy to:
[JPMorgan Chase Bank, as Senior Debt Trustee]
[J.P. Morgan Trust Company, National Association
,as Subordinated Debt Trustee]
Re: Euro Distribution Agreement
dated [_____ __], 2004
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete, authenticate
and issue a Temporary Global Note in accordance with the terms of the [Notes
Terms Agreement dated _______,] Administrative Procedures and Euro Distribution
Agreement and to give instructions to the Euroclear Operator, Clearstream and/or
any other relevant clearing system in order for you to:(1)
Credit account of [Name of Agent] with [Euroclear/Clearstream/Other](2) with the
following Bearer Notes:
------------------------------
(1) Separate instructions are to be sent in respect of each offer
accepted by the Company. Repeat this information (numbering consecutively) if
Bearer Notes of more than one Note Tranche are to be issued to an Agent.
(2) Delete as appropriate.
[Enlarge/Download Table]
All Notes: Fixed Rate Notes: Floating Rate Notes:
-----------------------------------------------------------------------------------------------------------
Principal Amount: Interest Rate: Base Rate:
-----------------------------------------------------------------------------------------------------------
Purchase Price: Applicability of Modified Index Maturity:
Payment upon
Acceleration:
-----------------------------------------------------------------------------------------------------------
Price to Public: If yes, state issue price: Spread (Plus or Minus):
-----------------------------------------------------------------------------------------------------------
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
-----------------------------------------------------------------------------------------------------------
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
-----------------------------------------------------------------------------------------------------------
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
-----------------------------------------------------------------------------------------------------------
Original Issue Date: Indexed Currency or Initial Interest Reset
Currencies (if any): Date:
-----------------------------------------------------------------------------------------------------------
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
-----------------------------------------------------------------------------------------------------------
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
-----------------------------------------------------------------------------------------------------------
Maturity Date: Reference Dealers: Maximum Interest Rate:
-----------------------------------------------------------------------------------------------------------
Optional Redemption Face Amount: Minimum Interest Rate:
Date(s):
-----------------------------------------------------------------------------------------------------------
Initial Redemption Date: Fixed Amount of each Interest Payment Period:
Indexed Currency (if any):
-----------------------------------------------------------------------------------------------------------
Initial Redemption Aggregate Fixed Amount Calculation Agent:
Percentage: of each Indexed Currency
(if any):
-----------------------------------------------------------------------------------------------------------
Annual Redemption Indexed Currency (if any): Reporting Service:
Percentage Reduction:
-----------------------------------------------------------------------------------------------------------
Ranking: Index Currency:
-----------------------------------------------------------------------------------------------------------
Series: Designated CMT
Telerate Page:
-----------------------------------------------------------------------------------------------------------
Minimum Denominations: Designated CMT
Maturity Index:
-----------------------------------------------------------------------------------------------------------
Other Provisions:
-----------------------------------------------------------------------------------------------------------
2
against payment of
[____________].
Date:
MORGAN STANLEY
By:
------------------------------------
3
APPENDIX 4
FORM OF COMPANY'S NOTICE TO UNIT AGENT
--------------------------------------
To: JPMorgan Chase Bank,
Attention:
_____________________
_____________________
Re: Euro Distribution Agreement
dated [ __], 2004
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete and issue a
Temporary Global Unit in accordance with the terms of the [Units Terms Agreement
dated _______________] Administrative Procedures and Euro Distribution Agreement
and to give instructions to the Euroclear Operator, Clearstream and/or any other
relevant clearing system in order for you to:(1)
Credit account of [Name of Agent] with
[Euroclear/Clearstream/Other](2) with the following Bearer Units:
---------------------------
(1) Separate instructions are to be sent in respect of each offer
accepted by the Company. Repeat this information (numbering consecutively) if
Bearer Units of more than one Unit Tranche are to be issued to an Agent.
(2) Delete as appropriate.
[Enlarge/Download Table]
-----------------------------------------------------------------------------------------------------------
Warrants Purchase Contracts
All Units: Issued as Part of a Unit: Issued as Part of a Unit:
------------------------- ------------------------- ------------------------------
Principal Amount: Price: Price:
-----------------------------------------------------------------------------------------------------------
Purchase Price: Specified Currency or Settlement Date and Time:
Composite Currency:
-----------------------------------------------------------------------------------------------------------
Price to Public: Exercise Date: Buy or Sell:
-----------------------------------------------------------------------------------------------------------
Place of Delivery: Warrant Property: Purchase Contract
Property:
-----------------------------------------------------------------------------------------------------------
Specified Currency: Permitted Payment: Purchase or Sale Price:
-----------------------------------------------------------------------------------------------------------
Original Issue Date: Exercise Price:
-----------------------------------------------------------------------------------------------------------
Expiration Date: Specified Currency or
Composite Currency:
-----------------------------------------------------------------------------------------------------------
Put or Call: Permitted Payment:
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
2
[Enlarge/Download Table]
All Notes Issued as Part Fixed Rate Notes Issued Floating Rate Notes
of a Unit: as Part of a Unit: Issued as Part of a Unit:
------------------------------- ----------------------------- -----------------------------
Principal Amount: Interest Rate: Base Rate:
-----------------------------------------------------------------------------------------------------------
Purchase Price: Applicability of Modified Index Maturity:
Payment upon
Acceleration:
-----------------------------------------------------------------------------------------------------------
Price to Public: If yes, state issue price: Spread (Plus or Minus):
-----------------------------------------------------------------------------------------------------------
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
-----------------------------------------------------------------------------------------------------------
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
-----------------------------------------------------------------------------------------------------------
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
-----------------------------------------------------------------------------------------------------------
Original Issue Date: Indexed Currency or Initial Interest Reset
Currencies (if any): Date:
-----------------------------------------------------------------------------------------------------------
Interest Accrual Date: Payment Currency (if Interest Reset Dates:
any):
-----------------------------------------------------------------------------------------------------------
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
-----------------------------------------------------------------------------------------------------------
Maturity Date: Reference Dealers: Maximum Interest Rate:
-----------------------------------------------------------------------------------------------------------
Optional Repayment Face Amount: Minimum Interest Rate:
Date(s):
-----------------------------------------------------------------------------------------------------------
Optional Redemption Fixed Amount of each Interest Payment Period:
Date(s): Indexed Currency (if any):
-----------------------------------------------------------------------------------------------------------
Initial Redemption Date: Aggregate Fixed Amount Calculation Agent:
of each Indexed Currency
(if any):
-----------------------------------------------------------------------------------------------------------
Initial Redemption Indexed Currency (if any): Reporting Service:
Percentage:
-----------------------------------------------------------------------------------------------------------
Annual Redemption Index Currency:
Percentage Reduction:
-----------------------------------------------------------------------------------------------------------
3
[Enlarge/Download Table]
All Notes Issued as Part Fixed Rate Notes Issued Floating Rate Notes
of a Unit: as Part of a Unit: Issued as Part of a Unit:
------------------------------- ----------------------------- -----------------------------
Ranking: Designated CMT
Telerate Page:
-----------------------------------------------------------------------------------------------------------
Series: Designated CMT
Maturity Index:
-----------------------------------------------------------------------------------------------------------
Minimum Denominations:
-----------------------------------------------------------------------------------------------------------
Other Provisions:
-----------------------------------------------------------------------------------------------------------
against payment of [___________].
Date:
MORGAN STANLEY
By:
----------------------------
4
Dates Referenced Herein and Documents Incorporated by Reference
8 Subsequent Filings that Reference this Filing
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